Texas Attorney General Opinion: GA-0633 Page: 4 of 9
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The Honorable Vicki Truitt - Page 4
(4) grant exclusive access to an employee by discriminating
against or imposing barriers to any agent, broker, or company that
provides qualified investment products under this Act;
(5) grant exclusive access to information about an employee's
financial information, including information about an employee's
qualified investment products, to a company or agent offering
qualified investment products unless the employee consents in writing
to the access;
(6) accept any benefit from a company or from an agent or
affiliate of a company that offers qualified investment products; or
(7) use public funds to recommend a qualified investment
product offered by a company or an agent of a company that offers a
qualified investment product.
TEX. REV. CIV. STAT. ANN. art. 6228a-5, 9(a)(4)-(7) (Vernon Supp. 2007).
On its face, section 9 applies to the actions of an "educational institution," which article
6228a-5 defines to mean a school district or an open-enrollment charter school. See id. 4(2), 9.
You do not ask whether the term "educational institution" in section 9 encompasses a third-party
administrator as the educational institution's delegatee or agent, and therefore we do not consider
the question. See Request Letter, supra note 1, at 3.2 Moreover, whether an entity serves as a
principal's agent depends upon the resolution of fact issues-specifically whether the principal
"manifests assent to" the entity that the entity will "act on the principal's behalf and subject to the
principal's control, and the [entity] manifests assent or otherwise consents so to act"-that cannot
be resolved in an opinion. RESTATEMENT OF THE LAW OF AGENCY 1.01 (3d ed. 2006); see Tex.
Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion
process."); see also RESTATEMENT OF THE LAW OF AGENCY 1.01 cmt. c (3d ed. 2006) (describing
the elements of agency, which include the principal's right to control the agent). We turn now to the
questions you ask, considering each subsection in turn. In this way, we combine our answers to your
2See also Letter from Steve Bresnen, Steve Bresnen & Assocs., on behalf of 1st American Pension Services,
Inc., to Honorable Greg Abbott, Attorney General of Texas, at 8 (Jan. 28, 2008) (suggesting that a third-party
administrator is an agent of the educational institution "under the principle of respondeat superior"); Letter from Susan
Jennings, General Counsel, Life Insurance Co. of the Southwest, to Honorable Greg Abbott, Attorney General of Texas,
at 5 (Feb. 7, 2008) ("As the [third-party administrator] would be the school's agent (since the school is the principal who
retained the [third-party administrator] to act on its behalf regarding the 403(b) plan)," a school could be liable for a
third-party administrator's violation of section 9(a)(7)) (both letters on file with the Opinion Committee).
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0633, text, 2008; (https://texashistory.unt.edu/ark:/67531/metapth275529/m1/4/: accessed March 19, 2019), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.