Untitled Texas Attorney General Opinion ( 1975 )

May 13, 1975
The Honorable Henry Rothell Opinion No. H- 605
r’
Administrator
Texas Employment Commission Re: Whether teachers and
Austin, Texas 78778 other school employees will
be eligible for Special Unem-
ployment Assistance under
the Emergency Jobs and
Unemployment Assistance
Act of 1974 during the period
Dear Mr. Rothell: between school terms.
You have requested our opinion concerning whether public school
employees will be eligible during the summer for benefits under the Special
Utiemployment Assistance Program. Public Law 93-567; 13 U.S. Code
Gong. and Ad. News 1974, p. 6827.
The Special Unemployment Assistance Program (hereinafter referred
to as the SUAP) was approved on December 31, 1974. Its purpose was to
provide special assistance for unemployed workers “who are not otherwise
eligible for unemployment allowances under any other law. ” Sec. 201. While
the program is exclusively federally funded, benefits are available only to
those persons who are “totally or partially unemployed” under state law and
who are not otherwise disqualified. Sec. 203(Z). -See art. 5221b-3(c),
V. T. C. S., which requires an applicant to apply for available suitable work
when so directed by the Commissioh.
It is our understanding that some 17 to 18 states have determined teachers
to be eligib1.e. 121 Gong. Rec. 2751 (daily ed. April 15, 1975). However, the
United States Congress i,s presently considering a bill which would deny SUAP
benefi,ts to teachers (H. R. 5899). If such a provision is enacted, it will of
course control the question. And see H. B. 1126, now pending in the Legislature.
Article 522lb-17(g)(5)(F), V. T.C.S., excepts state employees and those
of political subdivisions from the coverage of the state’s unemployment com-
pensation system. While the state’s employees are now within the system
p* 2683
. .
The Honorable Henry Rothell, page 2 (H-605)
pursuant to article 5221b-22d, political subdivisions retain an option
as to whether to participate in the system. It is our understanding that
none of such subdivisions presently participate. In addition, we are aware
of no’ other unemployment compensation system under which public school
employees as a class are eligible to participate. These empl0yee.s are
therefore within the class of workers eligible for SUAP benefits. Sec. 201.
Thus, it must be determined whether public school employees are
“unemployed” during the period between school years. Our discussion is
limited to those employees who are not working during the period. Article
5221b-17 (lJ. V. T. C~.S., provides:
An individual shall be deemed .‘totally unemployed’
in any benefit period during which he performs no
services and with respect to which no wages are
payable to him.
It is clear that these public skhool employees are performing no services
during this interim period. See, Mikolaicziak V. Micm
Security Commission, 198 N.W.2d 442 (Mich. 1972);Y%nceyv. Department
of Employment, 455 P.2d 679 (Idaho 1969); Studley V. Board of Review of
Department of Employment Security, 147 A.2d 912 (R. I. 1959). They will
therefore be:eligible for benefits if no wages are paid or payable to them
with respect to this period.
At the discretion of the local school board, many teachers are paid their
yearly salaries in 12 monthly payments. Education Code, section 16. 301(c).
Others are paid in 10 monthly installments throughout the school term. In
our view our past decisions and the relevant case law indicate that any dis-
tinction which could be drawn between the two methods is without merit.
In Attorney General Opinion H-404 (1974) we held persons performing no
services to be unemployed notwithstanding their receipt of a guaranteed annual
wage. We stated that:
. . . these payments are made in recognition of
services performed and are allocable to periods
of actual employment.
p. 2684
The Honorable Henry Rothell. page 3 (H-605)
Similarly, receipt of severance pay has been held not to constitute wages
paid with respect to the period involved. Western Union Tel. Co. V. Texas
Emploment Commission, 243 S.W.2d 217 (Tex. Civ.App. --El Paso 1951),
dism’d. W. o. j., 243 S.W.2d 154 (Tex. Sup. 1951). Attorney General Opinion
WW- 13 (1957) held that supplemental unemployment benefits were not paid
with respect to ,the period during which no services were performed, and
their receipt was consistent with the statutory definition of “unemployed. ”
In our opinion the payments some teachers receive during the summer
months are made in recognition of prior services rendered and are not paid
with respect to employment for the interim period. Such teachers are there-
fore “unemployed” under our state law. Those employees who receive no
payments during this periodare likewise “unemployed. ” Consequently,
public school employees who are not performing services during the period
between school years are eligible for SUAP benefits.
SUMMARY
Public school employees who are not performing
services during the period between school years are
“unemployed” under state law and are eligible for
Special Unemployment Assistance benefits unless
otherwise disqualified.
Very truly yours,
APPROVED:
u Attorney General of Texas
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2685