TITLE attorney-general

Opinion No. GA-0325

The Honorable Troy Fraser

Chair, Committee on Business and Commerce

Texas State Senate

Post Office Box 12068

Austin, Texas 78711-2068

Re: Whether police officers in a civil service municipality who advance in rank because of an officer's military leave of absence may be demoted to their former positions once the officer returns from military service (RQ-0282-GA)

S U M M A R Y

A police officer or fire fighter who fills the position of an officer on a military leave of absence under section 143.072 of the Local Government Code is subject to replacement upon the officer's return from leave. When a city civil service commission has filled a position under section 143.072 with a replacement officer, a department head may assign a subordinate officer to perform the duties of the replacement officer under section 143.038. Such an assignment is not a civil service promotion, and may be ended by the department head as circumstances warrant.

Opinion No. GA-0326

The Honorable Tom Maness

Jefferson County Criminal District Attorney

1001 Pearl Street, 3rd Floor

Beaumont, Texas 77701-3545

Re: Proper construction of Government Code section 551.143 and whether it is unconstitutionally vague (RQ-0291-GA)

S U M M A R Y

Members of a governmental body who knowingly conspire to gather in numbers that do not physically constitute a quorum at any one time but who through successive gatherings secretly discuss a public matter with a quorum of that body violate section 551.143 of the Open Meetings Act. This section is not on its face void for vagueness.

Opinion No. GA-0327

The Honorable Mike Stafford

Harris County Attorney

1019 Congress, 15th Floor

Houston, Texas 77002-1700

Re Whether a county's self-funded medical insurance plan is subject to certain provisions of the Texas Insurance Code (RQ-0296-GA)

S U M M A R Y

Pursuant to the state's continuing statutory revision program, insurance code provisions of the Revised Civil Statutes recently have been codified into the Texas Insurance Code. Though the revision program is nonsubstantive, the Texas Supreme Court, in Fleming Foods of Texas, Inc. v. Rylander, directs that when specific provisions of a nonsubstantive codification are direct, unambiguous, and cannot be reconciled with prior law, the codification rather than the prior law must be given effect. This change from the civil statutes to the Insurance Code is the context in which we answer Harris County's questions.

Harris County's self-funded benefit plan is not a "health benefit plan" as defined by Chapter 1501 of the Texas Insurance Code. Chapter 157 of the Texas Local Government Code, including section 157.101, is not another insurance law of this state as contemplated by Insurance Code section 1501.002(6) but is instead legislative authority for counties to provide health benefits to employees and their dependents. Thus, Harris County is not a health benefit plan issuer under Insurance Code section 1501.002(6).

Because the Harris County Plan is not a health benefit plan and Harris County is not a health benefit plan issuer, the Plan is not subject to the limiting age contained in section 1501.609 of the Insurance Code. Similarly, because the Plan is not a health benefit plan and the County is not a health benefit plan issuer, the provisions of section 1503.003(a), prohibiting the coverage of a covered County employee's child from being conditioned on the child's full-time enrollment at an educational institution, do not apply to the Plan.

Section 1201.062, Insurance Code, expressly applies to self-funded plans like the Harris County Plan. Therefore, the Plan must cover, when it provides coverage for a child of a covered County employee, unmarried grandchildren who are younger than 25 and who are federal income tax dependents of the covered employee. The Plan must also cover children for whom the covered employee must provide medical support under an order issued pursuant to Chapter 154, Texas Family Code.

Because the Harris County Plan is generally not subject to chapter 1201 of the Insurance Code, it is not required by sections 1201.063 and 1201.064 to provide coverage for grandchildren and stepchildren who do not reside with the covered County employee, provided they are not otherwise entitled to coverage under section 1201.062(a)(1) or (2) of the Insurance Code. For the same reasons, the Plan is not prohibited by these provisions from charging different premiums for grandchildren and stepchildren that are not the adopted or natural child of the covered employee.

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

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Filed: May 27, 2005