### E NEY GENERAL

TEXAS

AUSTXN TEXAS 78711 CRAWFORD c. MAR-rlN N'ovember25, 196,9

Mr. Gordon Lloyd Executive Secretary Employees Retirement System Capitol Station Austin, Texas Opinion NO. M-515

Re: Section 

### 3E of the Act governing the EmployeesRetirement Dear Mr. Lloyd: System

You have recently requested of this office an Attorney General's Opinionwith respect to certain aspects of the hployeesRetirement System which you administer. We under- 

### ;::;"dy you are presently concernedwith implementin .Secadded to theAct as a new subsectionby the E1st Legislature,Regular Session, 

### 1969,as construed inAttorney General OpinionsNo. M-413 (1969)and No. M-490 (1969).

Section 3E reads as follows:

"SubsectionE.,

"Anypersonwho was an Elective State Official and who,

has servednot less than eight (8)years in the Legislature of Texas (as such credltable service is defined in Chapter 524,Actsof the Regular Session, 58th Legislature

1/ All references in this opinion to sectionnumbers or to subdivisionsof a section,unless otherwise indicated,are to Chapter 352,Acts of the 50th Legislature,Regular Session, 1947, as amended by Chapter 524,Acts of the 58th Legislature,R.S., 1963, last amended by Chapter 113,p.287, Acts of the 61st Le islature,Regular Session, 

### 1969,codified as Article 

### 622a, % Vernon's Civil Statutes.

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as amended)may become a member of the EmployeesRetirement System by paying into such system Two Hundred EightyEight Dollars 

### ($288)for each year of service in the Legislatureof Texas. Provided further,any such personmust make application to become a member and pay in such sums prior to January 1, 

### 1970. Such application shall be made
on formsprovided by the Board, and, thereupon, such person shall be entitled to all the privilegesand benefits of such system."

Attorney General OpinionNo. 

### M-413holds that Section 

### 3E is constitutionalas it applies to a person who Is serving the State as an officer or employeeat the timehe seeks to become a member of the System and avai~l himself of credit for past legislative service, but unconstitutionalas It applies to a person not so serving.

The question then arises as to when a person eligible under 

### 3E becomesa member. Section 

### 3C, Is appl1cabJ.e

to a.:' person seekingmembership under Section 3E; hence, an appllcant otherwise qualified for membership under Section 

### 3E as interpretedby Opinions

### M-413and M-490 becomes a member of the system as of the first day of the month in which he commences to serve the State as an appointive officer or employee, or 'in" themonth in which he takes the oath of office if elected or aouolnted to an elective office. If such holder of an electiveb'rfice elects to becomea member, conditioned that for the purpose of becominga member eligible for the benefits available under Section 

### 3E he must make the-appllcation and uas the sum reauired under that sectionprior to January 1, i9iO. Section-3Eprovides that application for membership shall bemade on forms provided by the Board, but we are of the opinion that a person otherwise eligible may become a member upon tender of the required sum if he.has been unable after a good faith effort to obtain forms from the Board.

You have also Inquiredas to the length of time a person must serve as an officer or employee of the State In order to qualify for membershipunder Section 33. The Leglslature Is completely silent on this question,and this office is without authority to supply languageand say that a person

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must so serve for any specificperiod of time. For your guldante, we do affirmativelyhold that an applicant otherwise eligiblewould satisfy themembership condition If he commenced servingas an officer or employeeprior to December 1, 1969 and continued to so serve at least throughDecember 31, 1969, or if he commenced serving as an officer or employee at any timeprior to January 1, 1970, and continued to so serve at least through January 31, 1970. In either event he would have becomea member prior to January 1, 1970, under the provisions of 3C discussedabove, and the System would be able to set up his record and credithim with a payroll contribution. In the latter case he might not begin to accrue additional service credit until January 1, 1970, but Section 3C operates to make him a member prior to that date.

The next question concerns the nature of the rights acquiredunder Section 3E. In this connectionwe call your attention to the fact that Opinions M-413 and M-490 speak solely to the narrow subject of a particular type of credltable service for which application and payment must be made within a limited time. Nothing In either of those opin-’ ions governs any form of creditable serviceother than the Legislative service specificallyprovided for in Section 3E.

Opinion No. M-490 holds that an eligibleapplicant for membership under Section 3E becomes a member of the “electiveclass”. The term “electiveclass” is used in that opinion solely to characterizethe nature of the benefits to which theperson becomes entitled. As provided in the last sentence of Section 

### 3E, once a person becomes a member of the System under that section,he has a vested right In the benefitspayable to a former Legislatorunder the Act by virtue of his prior serviceas a I.egislator.The term refers to the specifict;yDeof ‘creditableservice” to which he Is entitled,and therebydetermines the rate at which his benefitswill be calculated to the extent that his benefits are based upon his prior service as a Lenislator.

For the very reason that the Legislaturehas provided
a specialprocedure whereby a former Legislatormay purchase credit for a sueclal tyue of prior service, I.e., legislative service,we have herd under OpinionM-490 that the Legislaturehas not required a member under Section 3E to

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Mr. Cordon Lloyd, page 4 (M-515)

serve five years service credit. is that it would

_ ^. beforehe may purchase that type of prior

Another indicationof Legislative Intent be clearly impossible for a Legislator

. returning to state service to serve five years before January 1, 1970.

Note that Section 3E makes no provision for the @urchase or transfer of any type of creditable service other than prior Legislative service. Credit could be allowed a, person coming into the System under Section 3E for any other type of creditable service only In conformitywith other provisions of theAct and with establishedadministrative procedure. In this connection,we have stated in Opinion M-490 that Section 4F is not applicable to the,question. there under consideration. That statement Is correct In ~ the context there made, for there we had under consideration a person's qualifying for the 8 eclal t able serviceauthorizedunder Section 3 whzrf z'$%n~ coming into the System under Section 3E may transferother creditable service,when he may do 80, and the type of bene- " fit he will receive are determlned by the facts of his em-: ployment when he seeks to do so. If he then holds anelec-," tive office he may claim such additional service; if 'eligible, upon taking the oath of office. If he then Fs the holder of an appolntiveoffice or is an employeehe may claim any other creditable service only under the same conditions and requirementsas those applicable to other members of the same class of membership, including the five year membership requirement.

The proceduresoutlined in the paragraph next above would seem to maintain the requireddifferencebetween classes of membership based upon duties, etc., of elective officials as distinguished from those of employees,as authorized In the Constitutionand as otherwiseprovided in the Act.

Section 3E does not expresslywaive or require the payment of a membership fee. That being true,we interpret the Legislative intent to be that a person becominga member under that section shallpay, for each year of creditable service purchased, the statutory $2.00membership fee. Such feemay be paid with the sum requiredunder Section, 3E or it may be deducted from the member's first paycheck.

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Mr. Cordon Lloyd, page 5 (M-515)

i?oor the reason that Legislativesalariesare paid from the GeneralRevenue Fund, all matching amountspayable by the State under Section 3E are payable from that same fund.

SUMMARY -w---e-

Section 3E, Chapter 352, Acts of the 50th Legislature,R.S., 1947,as amended by Chapter 524, Acts of,the 58th Legislature,R.S., 1963, last amended by Chapter 114, p. 287, Acts of the 6lst Legislature R.S., 1969, codified as Article 6228a,V.C.S., must be read togetherwith other sections of theAct. A person entering the Employees Retirement System under Section 3E becomes a member of the System as of the first day of the month in which he is employed,or in the month In which he takes the oath of office if he holds an elective office. To be eligible for the prior service providedunder Section 3E, however, themember must, prior to January 1, 1970, file the application and pay the sum required under that section. An eligibleperson who has purchased under Section 3E eight or more years of prior Legislative se* vice has a vested rlght.in a paid-up, annuity to be calculated, to the extent that his benefits are based upon prior Legislative service, on the
same basis as that provided for elective officials,and he does not have to serve five years to qualify for this type of creditable service. HIS right to receive other creditable service and the benefits to be derived therefromare determinedby

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Mr. Gordon Lloyd, page 6 (M-515)

the facts of his employment, other provisions of theAct, and established administrativeprocedure.

A person buying credit for prior Legislative service shallpay a membership fee of $2.00 for each year of creditable servicepurchased in addition to the sum required under Section 3E.
Matching amountspayable by the State under Section 3E are payable from the GeneralRevenue Fund,.,

Preparedby James S. Swearingen Assistant Attorney General

APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman George Kelton,Vice-Chairman

John Banks HoughtonBrownlee John Grace Sarah E. Phillips

MEADE F. GRIFFIN Staff Legal Assistant

NOLA WHITE First Assistant

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