E NEY GENERAL 

TEXAS 

AUSTXN TEXAS 78711 

CRAWFORD c. MAR-rlN N'ovember 25, 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 

Employees Retirement 

Dear Mr. Lloyd: System 

You have recently requested of this office an Attorney 

General's Opinion with respect to certain aspects of the hployees Retirement System which you administer. We under- 

;::;"dy 

you are presently concerned with implementin .Secadded to the Act as a new subsection by the E 1st 

Legislature, Regular Session, 1969, as construed in Attorney 

General Opinions No. M-413 (1969) and No. M-490 (1969). 

Section 3E reads as follows: 

"Subsection E., 

"Any person who was an Elective State 

Official and who, has served not less 

than eight (8) years in the Legislature of Texas (as such credltable service is defined in Chapter 524,Acts of 

the Regular Session, 58th Legislature 

1/ All references in this opinion to section numbers or to 

subdivisions of 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 622 % a, Vernon's Civil Statutes. 

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Mr. Gordon Lloyd, page 2 (M-515) 

as amended) may become a member of the 

Employees Retirement System by paying 

into such system Two Hundred EightyEight Dollars ($288) for each year of 

service in the Legislature of Texas. 

Provided further, any such person must 

make application to become a member and 

pay in such sums prior to January 1, 

1970. Such application shall be made 

on forms provided by the Board, and, 

thereupon, such person shall be entitled to all the privileges and benefits of such system." 

Attorney General Opinion No. M-413 holds that Section 

3E is constitutional as it applies to a person who Is serving the State as an officer or employee at the time he seeks 

to become a member of the System and avai~l himself of credit 

for past legislative service, but unconstitutional as It 

applies to a person not so serving. 

The question then arises as to when a person eligible 

under 3E becomes a member. Section 3C, Is appl1cabJ.e to a.:' 

person seeking membership under Section 3E; hence, an appllcant otherwise qualified for membership under Section 3E as 

interpreted by Opinions M-413 and 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" the month in which he takes the oath of office 

if elected or aouolnted to an elective office. If such holder 

of an elective b'rfice elects to become a member, conditioned 

that for the purpose of becoming a member eligible for the 

benefits available under Section 3E he must make the-appllcation and uas the sum reauired under that section prior to 

January 1, i9iO. Section-3E provides that application for 

membership shall be made 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 Inquired as to the length of time a person must serve as an officer or employee of the State In 

order to qualify for membership under Section 33. The Leglslature Is completely silent on this question, and this office 

is without authority to supply language and say that a person 

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Mr. Gordon Lloyd, page 3 (M-515) 

must so serve for any specific period of time. For your guldante, we do affirmatively hold that an applicant otherwise 

eligible would satisfy the membership condition If he commenced serving as an officer or employee prior to December 

1, 1969 and continued to so serve at least through December 

31, 1969, or if he commenced serving as an officer or employee at any time prior to January 1, 1970, and continued 

to so serve at least through January 31, 1970. In either 

event he would have become a member prior to January 1, 1970, 

under the provisions of 3C discussed above, and the System 

would be able to set up his record and credit him 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 

acquired under Section 3E. In this connection we 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 service other than the 

Legislative service specifically provided for in Section 3E. 

Opinion No. M-490 holds that an eligible applicant 

for membership under Section 3E becomes a member of the 

“elective class”. The term “elective class” is used in 

that opinion solely to characterize the nature of the benefits to which the person 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 benefits payable to a former Legislator under 

the Act by virtue of his prior service as a I.egislator. The 

term refers to the specific t;yDe of ‘creditable service” to 

which he Is entitled, and thereby determines the rate at 

which his benefits will be calculated to the extent that 

his benefits are based upon his prior service as a Lenislator. 

For the very reason that the Legislature has provided 

a special procedure whereby a former Legislator may purchase 

credit for a sueclal tyue of prior service, I.e., legislative service, we have herd under Opinion M-490 that the 

Legislature has 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 _ ^. 

before he may purchase that type of prior 

Another indication of 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 conformity with other 

provisions of the Act and with established administrative 

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 service authorized under Section whzrf 3 z'$%n~ 

coming into the System under Section 3E may transfer other 

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 appolntive office or is an employee he may 

claim any other creditable service only under the same conditions and requirements as those applicable to other members of the same class of membership, including the five 

year membership requirement. 

The procedures outlined in the paragraph next above 

would seem to maintain the required difference between 

classes of membership based upon duties, etc., of elective 

officials as distinguished from those of employees, as 

authorized In the Constitution and as otherwise provided 

in the Act. 

Section 3E does not expressly waive or require the 

payment of a membership fee. That being true, we interpret 

the Legislative intent to be that a person becoming a member under that section shall pay, for each year of creditable service purchased, the statutory $2.00 membership fee. 

Such fee may be paid with the sum required under 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 Legislative salaries are paid 

from the General Revenue Fund, all matching amounts payable 

by the State under Section 3E are payable from that same 

fund. 

-w---e- SUMMARY 

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 together with other sections of the Act. 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 provided under Section 3E, 

however, the member must, prior to 

January 1, 1970, file the application 

and pay the sum required under that 

section. An eligible person 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 therefrom are determined by 

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. . . 

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

the facts of his employment, other 

provisions of the Act, and established 

administrative procedure. 

A person buying credit for prior Legislative service shall pay a membership 

fee of $2.00 for each year of creditable 

service purchased in addition to the sum 

required under Section 3E. 

Matching amounts payable by the State 

under Section 3E are payable from the 

General Revenue Fund,., 

Prepared by James S. Swearingen 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

John Banks 

Houghton Brownlee 

John Grace 

Sarah E. Phillips 

MEADE F. GRIFFIN 

Staff Legal Assistant 

NOLA WHITE 

First Assistant 

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