Re: Whether the Texas Department of Assistive and Rehabilitative Services must seek reimbursement for benefit replacement pay erroneously paid to ineligible employees (RQ-0114-GA)

S U M M A R Y

Government Code chapter 666 authorizes state agencies to seek to recover overpayments of compensation to employees, including benefit replacement pay. The agency may request the comptroller to recover the overpayment, but it is not required to do so. Government Code section 403.055(f) requires a state agency to report to the comptroller that one of its employees has received excess compensation.

Recovery may be sought from an agency's former as well as its present employees. The agency must give notice to the indebted employee before requesting the comptroller to recover the overpayment. No statute of limitations bars the state's recovery of employee indebtedness to it.

Opinion No. GA-0172

The Honorable Joe Nixon

Chair, Committee on Civil Practices

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Whether an ad hoc committee organized for designing an emergency reroute plan is immune from civil liability under chapter 79 of the Civil Practice and Remedies Code (RQ-0119-GA)

S U M M A R Y

Chapter 79 of the Civil Practice and Remedies Code, which provides immunity from civil liability for certain acts or omissions involving management of hazardous-material incidents and disasters, applies only to individuals, associations, corporations, and other private legal entities. Chapter 79 does not apply to the "Ad-hoc Committee of the IH-10 Incident Management Plan," a committee composed of city, county, and state officials representing police and fire departments, the City of El Paso, the El Paso County sheriff's office, the Texas Department of Public Safety, and the Texas Department of Transportation. In addition, section 79.003 does not provide immunity to committee members, who serve on the committee as representatives of their respective governmental employers within the scope of their official duties, for acts or omissions within the scope of their official governmental duties. Their immunity for such acts or omissions is governed by the Texas Tort Claims Act and other related laws.

Opinion No. GA-0173

The Honorable Kenny Marchant

Chair, Committee on State Affairs

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78767-2910

Whether it is a penal offense for a city that operates a senior citizens' community center that is exempt from licensing under the Bingo Enabling Act to possess gambling paraphernalia and whether such gambling paraphernalia is subject to state sales tax (RQ-0125-GA)

S U M M A R Y

If the City of Carrollton conducts bingo under the Bingo Enabling Act exemption for senior citizens' community centers operated or funded by a governmental entity, see TEX. OCC. CODE ANN. § 2001.551(b)(3) (Vernon 2004), it may assert the Penal Code section 47.09 defense if it is prosecuted for possessing gambling paraphernalia that it possesses to conduct or administer bingo. See TEX. PEN. CODE ANN. §§ 47.06 (Vernon 2003) (gambling paraphernalia possession offense), .09(a)(1)(A) (defense to prosecution for conduct authorized under Occupations Code, chapter 2001). Bingo equipment "sold, leased, or rented to, or stored, used, or consumed by" the City of Carrollton would be subject to the sales-tax exemption for governmental entities provided by section 151.309 of the Tax Code. See TEX. TAX CODE ANN. § 151.309 (Vernon 2002).

Opinion No. GA-0174

The Honorable Frank J. Corte Jr.

Chair, Defense Affairs and State-Federal Relations Committee

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78711

Re: Whether the City of Fort Worth must assume the full cost of continuing health insurance and other benefits for its fire fighters and police called to military service, and whether the City must allow its employees to donate to the military leave-time account their accrued paid leave that would expire if not used before the end of the year (RQ-0121-GA)

S U M M A R Y

A municipality must maintain the insurance and benefits coverage when a municipal fire fighter or police officer is called for military duty, but only on the terms in effect when the employee received the call. Those terms may include the employees' obligations to pay their portion of any premiums.

Municipal fire fighters and police officers are entitled to donate any amount of leave to their department's military leave-time account that they would be entitled to use for themselves. A municipality may not delete time from the military leave-time account on the ground that an employee who donated leave to the account has accumulated the maximum amount of leave that municipal policies permit an employee to carry over from year to year.

For further information, please access the website at www.oag.state.tx.us. or call the Opinion Committee at 512/463-2110.

TRD-200402370

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Filed: April 7, 2004