Honorable Travis White 

President 

Midwestern University 

Wichita Falls, Texas 76308 

Opinion No. R-196 

Re: Validity of Senate Bill 

292, Acts 60th Legislature, 

Regular Session, 1967, 

Chapter 729, page 1955 

an Act relating to an 

Optional Retirement Program 

for teachers (Article 

Dear Dr. White: 2922-11, V.A.C.S.) 

Your request for an opinion on the above subject 

poses the following questions: 

"1. Does the vesting provision in section 3(a) of 

ArticLe 2922-U., V.A.C.S., violate section 488 of Article 

3 of the Texas Constitution? 

"2. Does section 8(d) of Article 2922-11, V.A.C;S., 

violate the first paragraph of section 48a of Article 3 of 

the Texas Constitution? 

"3. Does the last paragraph of section.8 of Article 

2922-11, V.A.C.S., violate the second paragraph of section 

48a of Article 3 of the Texas Constitution? 

"4 . Does the fact that Article 2922-11, V.A.C.S., 

does not contain any provision providing for the coordination 

of benefits payable under the Optional Retirement Program 

with those payable under other state pension retirement funds 

or direct aid from the State of Texas, violate the second 

paragraph of section 48a of Article 3 of the Texas Constitution?" 

Section 48 of Article 3 of the Texas Constitution expressly 

confers on the Legislature the power to levy taxes both to 

support the pub11c schools, including colleges and universities, 

and to pay all employees of the State. 

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Hon. Travis White, page 2, (M-196) 

Section 48a of Article 3 of the.Constitution gives 

the Legislature the power to tax to establish the Teachers 

Retirement System fund, and Section 48b of the same article 

establishes the Teachers Retirement System and its Board 

of Trustees. 

Article 2922-li, V.C.S., authorizes an Optional Retirement Program under which the governing boards of state 

colleges and universities may contract with any life insurance or annuity company qualified to do business in 

Texas to provide retirement benefits for their staff and 

faculty. Under this statute, when a governing board establishes the optional plan, each faculty member may elect 

either to remain in the Teachers Retirement System or to 

become a participant in the Optional Retirement Program. 

As we approach the question of the constitutionality, 

of Article 2922-15, it would be well to observe that we' do 

not seek the answer by trying to find some specific power 

in the Constitution which authorizes the statute. The 

State Constitution, unlike the, Federal, is not a grantof 

power, but serves solely as a limitation of power. So the 

Legislature may exercise all legislative power not denied 

or prohibited to it by the Constitution. All intendments 

are against restrictions upon the legislative power. In 

order for the courts to hold an act of the.Legislature,,unconstitutional, they must be able to point out the, specific " " 

provision which inhibits the legislation. Also, if there 

be two possible constructions, the one favoring the constitutionality of a statute will be followed. A statute is 

not declared unconstitutional in a doubtful case, but every 

intendment and presumption favoring constitutionality is 

indulged in. Byrd v. Dallas, 118 Tex. 28, 6 S.W.Zd 738.. 

(1928). To the same effect are: Shepherd v. San'Jacinto 

Junior College District, et al., 363 S.W.2d 742 (Tex. Sup. 

1963): Perkins v. State of Texas, 367 S.W.Zd 140 (Tex. Sup. 

1963); Government Services Insurance Underwriters v. Jones, 

368-,S.W.Zd 560 (Tex. Sup. 1963) 0 As stated 

case "where ..* there is a tenable theory supporting in th' =I?@ t e 

questioned legislative power .D. the provision . . . should be 

upheld." 

Pension systems for public employees were put in operation by statute long before the constitutional amendments 

regarding such systems were passed. These statutory systems 

were upheld as constitutional in 1928 by.the Supreme Court 

in Byrd v. Dallas, supra, and in subsequent cases, such as, 

? : 129 Tex. 150, 101 S.W.2d 1009 

, of Dallas, 141 Tex 170, 170 S.W. 

” 939 - 
Hon. Travis White, page 3, Wl96) 

2d 722 (Tex. 1943). The Supreme Court reasoned that the 

retirement pension is part of the compensation of the employee. Thus, public funds were being put to a public 

purpose and there being no constitutional prohibition, the 

statutes were constitutional. 

It follows that the Legislature had and has the constitutional power to create a pension system to provide retirement benefits for persons employed in public schools, colleges, 

and universitites supported by the State, without relying on 

sections 48a and b of Article 3 of the Constitution. 'There 

are many reasons why it may be desirable to establish a program 

through an amendment to the Constitution, but it is apparent 

that a feared lack of constitutional power was not the reason 

behind the enactment of sections 48a and b, inasmuch as that 

power already clearly existed. Whether the Legislature lacks 

the constitutional power to establish a second or alternate 

retirement program for persons employed in state-supported 

colleges and universities will thus depend upon whether or 

not there is a prohibition against the creation of such a 

program in sections 48a and b of Article 3, since it is clearly 

permissible under the remainder of the Constitution. 

Question No. 1 

Section 3(a) of Article 2922-11, requires that the 

Optional Retirement Program provide ‘for the vesting of 

benefits after one year of participation.' You inquire 

whether that vesting provision violates section 48a of 

Article 3 of the Texas Constitution. Section 48a provides, 

::. in pertinent part, that with respect to the Teachers Retire- 

. ment System fund authorized by section ,i8a, "no person shall 

be eligible for retirement who has not rendered ten years 

.a of creditable service in such employment, and in no case" 

shall any $person retire before either attaining the age 55~ 

or completing 30 years of creditable service, but shall be 

entitled to refund of moneys paid into the fund." 

Thus, out of the Teachers Retirement System fund, no 

benefits can be paid to anyone who has not met the service 

and age requirements set out in section 48a, and any person 

not meeting those requirements would have no right to any 

part of the fund except the right to have refunded the moneys 

he or she had theretofore paid into the fund. 

On the other hand, under the Optional Retirement Program 

authorized by Article 2922-li, the faculty member's right 'to 

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. 

Hon. Travis White, page 4, (M-196) 0 

benefits vests after only one year of participation in 

the program, and if the faculty member terminates his 

employment after such vesting date, the faculty member 

would be entitled to retain all benefits which had then 

accrued to*him. 

However, the provisions of section 48a do not operhte 

as a prohibition against the vesting provision of the 

~~$n:~ Retirement Program. 

- and only to - 

Section 48a specifically re-, 

the Teachers Retirement System 

fund, and it does not purport to operate as a broader 

limitation on legislative power. The Optional Retirement 

Program is not a part of the Teachers Retirement System, 

. and the moneys contributed to the Optional Retirement 

. Program never become a part of the Teachers Retirement 

System fund. All moneys appropriated and allocated to 

the Teachers Retirement System are paid to it monthly 

‘based on the estimates of the System Trustees. Those 

moneys become a part of the Teachers Retirement System 

fund when so paid. See Art. 2922-1, Sec. 11, subparagraph 

2(b) and Art. 7083a.2, Sec. 3. 

The Optional Retirement Program derives its moneys 

from its own appropriations and from the contributions 

of the participants in the program. The State's contributions are paid by the Comptroller to the disbursing 

officers of the several institutions, and those disbursing 

officers pay the total contributions of the State and the 

participants in the program.to the company or companies 

providing the benefits. See the last paragraph of Section 

8 of Article 2922-U. Thus, each of the two retirement 

programs has its own method of financing its benefits, but 

they are in no way confljxting and in no way a limitation, 

upon each other. It is the duty of a court to uphold the 

statute if in doing so it.can be given a reasoriable con-"~ 

struction that will botti render it constitutional and carry 

out the legislative intent. 12 Tex.Jur.Zd 388, Constitutional 

L&I, Sec. 44. 

Accordingly, we answer your first question in the negative. 

Question No. 2 

Section 8(d) of Article 2922-3.1 provides that under the 

Optional Retirement Program, the State shall not only contribute the amount which it would have been required to contribute under the Teachers Retirement System, but also an additional amount equal to 6% of that portion of the faculty 
Hon, Travis Nhlte, page 5, (M-196) 

member’s saiary which exceeds the amount of annual salary 

that 1s sub]ect to computation of contributions to the Teachers 

Retirement System - but only "to the extent that such contributlon itc the Optional Retirement System) is not prohibited by other applicable laws of this state now or hereafter in force and effect." You inquire whether section 

8(d) of Article 2922-li violates the first paragraph of ' 

section 48a of Article 3 of the Texas Constitution, which 

paragraph, in pertinent part, provides that "the amount 

contributed by the State to such fund each year shall be 

equal to the aggregate amount required by law to be paid 

into the (Teachers Retirement System) fund by such employees, and shall not exceed, at any time 6% of the compensation pard each such person by the State and/or school 

districts, and shall in no one year exceed the sum of $504 

for any such person." 

Assuming ias we do for the purpose of considering 

this questlonr that the above quoted section 48a limitations 

on the amount of the State's contribution to the Teachers 

Retirement System fund apply to and govern the amount the 

State may contribute to the,Optional Retirement Program, 

section 8(d) of Article 2922-U still does not violate 

section 48a, because the State's contribution made under 

section 8(dt is authorized only "to the extent that such 

contrlbutzon 1s not prohibited by other applicable laws 

of this Stare now or hereafter in force and effect." 

Therefore, if the above quoted section 48a limitations 

are applicable to the State's contribution made under 

Section 8(d), then by the express terms of section 8(d) 

those section 48a limitations will control, and there 

can therefore be no violation of section 48a. Where such 

a statute can be given a more restricted interpretation ', 

to apply only to matters lying within the legislative 

power, a court will do so and uphold its validity to I 

harmonize with the Constitution. 12 Tex.Jur.2d 390, 

Constitutional Law, Sec. 45. 

Accordingly, we answer your second question in the 

negative. 

Question No, 3 

In view of the issue raised in your fourth question, we 

assume that your third question involves the following portion 

of section 8 of Article 2922-li, to wit: "The contributions 

of faculty members participating in the Optional Retirement 
. 

Hon. Travis White, page 6, (M-196) 

Program in each institution of higher education shall be 

deducted as provided by law applicable to the System. The 

contribution of the State for faculty members participating 

in the Optional Retirement Program in each institution of 

higher education shall be paid by the Comptroller of Public 

Accounts of the State of Texas to the applicable institution 

of higher education. The disbursing officer of such institution of higher education shall pay the total of such contributions from both the faculty member and the State to the 

company providing the Optional Retirement Program for that 

institution." You inquire whether the above quoted p~rovision 

violates the following portion of section 48a of Article 3 

of the Texas Constitution, to wit: "The Legislature may 

authorize all moneys coming into such fund to be invested in, 

bonds or other evidences of indebtedness of the United States, 

or of this State, or any county, city, school district, or 

other municipal corporation or district of this State, or in 

such other securities as are now or hereafter may be permitted 

by law as investments for the Permanent University Fund of 

this State: provided a sufficient sum shall be kept on hand 

to meet payments as’they become due each year under such retirement plan, as may be provided by law: . ...' 

As we have pointed out heretofore in this opinion, 

section 48a authorizes the establishment of the Teachers 

Retirement System fund and prescribes certain conditions ; 

governing the operation of that fund. Indeed, in the provision here under consideration section 48a states that 

"The Legislature may authorize all moneys coming into the 

fund to be invested . . ..I Thus, it is perfectly clear Hiat 

theconstitutional orovision in auestion deals onlv with 

"moneys coming into-the (Teacher; Retirement Syst&) fund.' 

Rut the questioned provision in the last paragraph of 

section 8 of Article 2922-11 does not deal with "moneys 

coming into the (Teachers Retirement System) fund.' On the 

contrary, it deals exclusively with moneys that never go 

into the Teachers Retirement System fund. As stated before, the moneys dealt with under the provisions of Article 

2922-li remain in the hands of the Comptroller of Public 

Accounts and the disbursing officers of the several institutions of higher education until they are paid to the r~ 

company or companies providing the Optional Retirement 

~Program. Therefore, there is no conflict between.the above 

quoted provision of Article 2922-11 and the above quoted 

provision of section 48a of Article 3 of the Texas Constitution because they relate to different moneys, and, again, 

there is no attempt in section 48a to prohibit or limit anything other than the activities of the Teachers Retirement 

System. 
Hon. Travis White, page 7, (M-196) . 

In accordance with the canons of construction heretofore discussed, we answer your third question in the negative. 

Question No. 4 

,Section 7 of Article 2922-U provides as follows: 

"A faculty member with ten (10) or more years of 

creditable service under the Retirement System who 

has elected to participate in the Optional Retirement Program in accordance with the provisions of 

Section 5 and who has not further elected to withdraw his contribution as provided in Section 6 shall 

become a limited member of the Retirement System for 

the purpose of accruing Service Retirement Benefits as 

hereafter provided but shall no longer be considered 

as a member of the Retirement System for the purpose 

of accruing Disability, Death and Survivor Benefits 

,thereunder and no such disability, death and survivor 

benefits shali be payable by reason of limited membership except as hereafter provided. If a limited member 

shall die before retirement and during any school year 

in which the member is in service, there shall be paid 

.to his designated beneficiary the accumulated contributions standing to the account of the member in the 

Teacher Savings Fund; however, no other death or survivor benefit or option shall be payable by reason 

thereof. The faculty member on limited membership 

shall be required to make no further contributions to 

the Retirement System. A limited member shall be entitled to Service Retirement Benefits under the, Re-, 

tirement System: provided, however, that for the purpose of computing the Standard Annuity under the *' 

methods provided by law and thus the amount of such 

7, benefits only the faculty member's creditable service 

and compensation prior to making an-election to participate in the Optional Retirement Program shall. be 

considered." 

YOU inquire whether the above quoted section 7 violates 

the second paragraph of section 48a of Article 3 of the Texas 

Constitution which provides, in pertinent part, that "the recipients of (the Teachers Retirement System) fund shall not be 

eligible for any other State pension retirement funds or direct 

aid from the State of Texas , unless such other State pension 
Hon. .Travia White, page 8 (M-196) 

or retirement fund, contributed by the State, le released 

to the State of Texas aa a condition to recelvlng such other 

pexision aid . . ..‘I 

Since Article 2922-11 does not provide or contemplate 

that a recipient of the Teachers Retirement System fund who 

elects to pdrtlcipate in the Optional Retirement Program 

will release to the State the moneys. contMbuted by the, State 

to the OptIonal Retirement Program to hle credit, It follows 

that 80 long as a faculty member is a recipient of the Teachers 

Retirement System fund, he Is not eleglble to receive any 

benefits from the Optional Retirement Program. He may easily 

cease to be a recipient of the Teachers Retirement System 

fund by withdrawing from the Teachers Retirement System and 

withdrawing from the fund all contributions he has made.thereto. 

See section 48a of Article 3 of the Texarr Conbtitutlon; Section 

6 of A+cle 2922-U. Of cpuree, upon the withdrawal of such 

conttlbutions from the fund; the faculty member will thereby 

forfeit and relinquish all accrued rights a8 a member of).th& :. 

Teacher8 Retlrcment System. 

Since section 7 of Article 2922-11 attempts to permit 

recipients of the Teachers Retirement System fund to be 

eligible for another State pension retirement fund without 

“such other State pensiop retirement fund, contributed by the 

State to the credit of the recipient, being released to the 

State of Texas,” said se’ction 7 violates the above quoted 

provisions ~of section 48a of Article 3 of the Texas Constitution and is therefore, unconstitutional and void because 

neceshlarily antagoqletic to the clear constitutional provision. 12 Tex. JLWB. 2d 3’74, Constitutional Law, Sec. 30. 

However, since the act out of which Article 2922-11 arose 

contained a savings or severabllity clause and since all:of 

the other provisions .of the’ act can be given effect without 

giving effect to section 7 thereof, the remainder of Article 

2922-U iB not Invalidated by the unconstltutlonallty of section 7. 12 Tex.Jur.2d 394, Constitutional Law, Sec. 49, and 

ca6es there cited. 

Accordingly, we answer your fourth question that section 

7 of Article 2922-11 is Invalid because it violatee section 48a 

o? Section 3 of the TeXaB Constitution. 

What has been,said heretofore in this opinion disposes bf 

the four specific questions posed by you, but it ehould bea 

noted that in enacting Article 2922-11, the Legislature adopted 

the following statement of purpose and intent: 

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, . 

Hon. Travis White, page 9, (M-196) 

"The Legislature finds that higher education is 

vitally rmportant to the welfare, if not the survrval, of Texas and the United States at this stage 

in history and that the quality of higher education 

is dependent upon the quality of college and university faculties. The Legislature finds, therefore, 

that moneys spent on recognized means for producing 

an excellent system of public higher education is 

money spent to serve a public purpose of great importance. The Legislature finds further that a sound 

faculty retirement program that provides full and complete retrrement benefits to teachers and administrators who have given faithful service to state-supported 

institutions of higher education is a well-recognized: 

means for improvins a state's nrocram of DubliC hiaher 

education. The Legislature's purpose in establishing 

the retirement program provided for by this Act is to 

improve further the higher education available to the 

vouth at the state-suonorted colleoes and universities 

and to establish this-Retirement p- rogram as part of the 

plan of compensation for the faculty of these colleges 

and universities." (Emphasis added.) 

Section 49b of Section 3 of the Texas Constitution, like 

section 48a discussed above, deals with "moneys coming into 

the (Teachers Retirement System) Fund," and has no application. 

to moneys in, or contributions to , the Optional Retirement' 

Program, which latter moneys and contributions never go into 

and.never become a part of the Teachers Retirement System 

fund. 

We conclude, therefore, that neither section 40a nor 

49b of Section 3 of the Texas Constitution contains any prohibition against the establishment of a second or alternates 

retirement program for persons employed in state-supported 

colleges and universities, and that with the exception of 

section 7 noted above, the Legislature was fully empowered 

to create the Optional Retirement Program authorized in Article 

2922-11. 

SUMMARY 

1. The vesting provision of section 3(a) of Article 

2922tli, V.C.S., does not violate section 48a of Article 3 

of the Texas Constitution. 

. 

2. Section 8(d) of Article 2922-li, V.C.S., does not 

violate the first paragraph of section 40a of Article 3 of 

the Texas Constitution. 

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Hon. Travis White, page 10, (M-196) 

3. The last paragraph of'section.8 of Article 2922-li, 

V.C.S., does not violate the second paragraph of.section 48a 

of Article 3 of the Texas Constitution. 

4. Section I of Article 2922-li', V.C.S.~; violates 

section48a of Section 3 of the Texas Constitution and is 

therefore invalid. However, it is severable! 'and the remainder of the Article is not rendered invalid by the unconstitutionality of section 7. 

5. With the exception of section7 of Article'i2922-li, 

V.C.S.., the,Legislature was empowered to.create the,Dptional 

Retirement,Program authoriz,ed by Article 2922:li. 

Prepared by Houghton Brownlee, Jr. 

Assistant Attorney General 

APPROVED:. 

OPINION COMMITTEE 

Hawthorn Phillips,'Chairman 

Kerns B. Taylor, Co-Chairman 

W. V. Geppert 

Ralph Rash 

Milton Richardson 

Jack Sparks 

Robert Flowers 

.Harold Kennedy 

Executive Assistant 

A. J. CARUBBI, JR. 

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