- . 

EATTORNEY GENERAL 

OFTEXAS 

AUSTIN. TEXAS 78711 

CRAWFO- C. MARTEN 

June 9', 1969 

Hon. B. D. DeBerry, Jr 

Chairman, Board of Trustees 

Bmployees Retirement System of Texas 

Capitol Station 

Austin, Texas 78711 Opinion No. M-413 

Re: Constitutionality of S.B. 

418, Section 4, SubDear Mr. DeBerry: section E, 61st Legislature 

Recently you requested an opinion on the constitutionality 

of S.B. 418, Section 4, Subsection E, 61st Legislature reading 

as follows: 

"Any person who was an Elective State Official and who has served not less than 

eight 8) years in the Legislature of 

Texas t as such creditable service is 

defined in Chapter 524, Acts of the 

Regular Session 58th Legislature as 

amended) may become a member of the Bmployees Retirement System by paying into such s stem Two Hundred Eighty-eight 

Dollars ( i 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&d benefits of such system." 

A consideration of the constitutionality of the above provision involves two Articles of the Constitution of the State 

of Texas. Article I, Section 16, thereof states: 

"NO bill of attainder, ex post facto law, 

retroactive law, or any law impairing 

the obligation of contracts shall be made." 

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Hon. H. D. DeBerry, Jr., Page 2 (M-413) 

Article III, Section 44 of the Constitution providesz 

"The Legislature shall provide by law 

for the compensation of all officers, 

servants, agents and public contractors, 

not provided for in this Constitution, 

but shall not grant extra compensation 

to any officer, agent, servant or public 

contractors, after such public service 

shall have been performed or contract 

entered into, for the performance of the 

same;.nor grant, by appropriation or otherwise, any amount of money out of the 

Treasury of the State, to any individual, 

on a claim, real or pretended, when the 

same shall not have been provided for by 

pre-existing law; nor employ any one in the 

name of the State& unless authorized.by 

pre-existing law. 

We also observe that Article III, Section 53, Constitution 

of Texas provides, in part, that "The Legislature shall have no 

power to grant. . . any extra compensation, fee or allowance 

to a public officer e . . after service has been rendered, or 

a contract has been entered into, and performed in whole or 

part. . .' This section was included primarily to prohibit 

counties or municipalities from doing that which the State 

is forbidden to do by Article III, Section 44 above quoted. 

You have also asked whether the Legislature can enact 

S. B. 418, Section 4, Sub--section E, 61st Legislature, it 

having previously passed into law House Bill 902, Acts 58th 

Legislature R.S. lg639 Chapter 524, p* 1372 (Article 6228a,, 

Sec. 3B3, V.C.S.), a portion thereof reading as follows: 

"Any person who on January 1, 1963, is an 

elective State official as defined herein, 

shall, before October 1, 1964, execute an 

election to become a member of the Retirement System as of January 1, 1963, or 

election not to become a member of the Retirement System. This election to become 

a member or not to become a member shall 

be filed with the State Board of Trustees 

on a form provided by the Board. The 

- 2057 - 
Hon. H. D. DeBerry, Jr, page 3 (M-413) 

election not to become a member will include 

a duly executed waiver of all present and 

prospective benefits which would otherwise 

inure to him on account of his participation 

in the System. Contributions shall be due 

and payable for the month of January 1963, 

and each month thereafter, and membership 

service shall begin as of January 1, 1963. 

"Any person who becomes an elective State 

Official by reason of election or appointment after January 1, 1963, shall within 

six (6) months from the month in which he 

takes the oath of office or October 1, 1964, 

whichever date is later, execute an election 

to become a member of the Retirement System 

or hot,to become a member of the Retirement 

System. This election to become a member or 

not to become a member shall be filed with 

the State Board of Trustees on a form provided by the Board. The election not to 

become a member will include a duly executed 

waiver of all present and prospective benefits 

which would otherwise inure to him on account 

of his participation in the System. Contrlbutions shall be due and payable for the 

month in which he takes the oath of office, 

and each month thereafter, and membership 

service shall begin with the first day of 

the month in which he takes the oath of office." 

The only portion of Section 16 of Article I of the Constitution that could be applicable to Senate Bill 418, is that 

portion thereof prohibiting the enactment of retroactive laws. 

Concerning this prohibition, however, it has long been established that not all retroactive legislation is prohibited. 

It is onlv that retroactive leajsla:tion that imvairs. destrovs 

or in any"manner divests or ad;ersely affects Gested rightsthat is 

3 S.W. & 

rohibited. Mellinger v. City of Houston, 68 Tex. 37, 

2 9 (1887); McCain v. Yost, 15 5 Tex. 174 284 S.W.2d 

898 (19551. _.. , The Legislature has the power to a& both retrospectively and prospectively. Article I, Section 1.6 of the 

Constitution only prohibits the Legislature from passing 

retroactive legislation that will impair or destroy vested 

rights. 

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Hon. H. D. DeBerry, Jr, Page 4 (M-413) 

Senate Bill 418 grants to certain individuals the opportunity to become members of the Employees Retirement 

System. Because aright is created by Senate Bill 418, 

as opposed to destroying a vested right, such legislation 

does not violate Article I, Section 16 of the Constitution 

of the State of Texas. 

By its terms S.B, 418, Section 4, Sub-section E, 61st 

Legislature permits any person who was an Elective State 

Official and who has served not less than eight years in 

the Legislature of Texas to become a member of the Employees 

Retirement System upon certain conditions. This legislation affects not only persons presently serving the State 

in one capacity or another but it also includes persons 

who were Elective State Officials. There is no requirement 

in the statute that in order to become a member of the Retirement System a person must be presently serving the 

State. 

There are numerous cases that characterize ensions as 

compensation*, B rd v. City of Dallas et al, 

6 S.W.2d 738 (l&) City of Orange v. Ch 

1 E 8 Tex, 28, 

938 (Tex.Civ.App. 1459 

ante, 325 S.W.2d 

Departments v. City of'A%Tz 

. Austin Fi re and Police 

A 1949) reversed i 

2& S W 26 m (T 

t &d affiied in 

Cl 

Tg!: 101, ;?8 S.W.2d &5!a~rticlt III, Sec. 4 E 

ar?'l4;' 

of'the 

Constitution expressly prohibits extra compensation to be 

paid to any officer, agent, servant or public contractor 

after their public service has been performed. Inasmuch 

as S.B. 418, Section 4, Sub-section E, 61st Legislature 

would permit persons who are not serving the State in one 

capacity or another to become a member of the Retirement 

System, and thus draw extra compensation, such legislation 

as applied to persons not serving the State is in violation 

of Article III, Section 44 of the Constitution of Texas. 

This does not mean, however, that an individual who has, 

prior to the effective date of Article 6228a, Sec. 3B3, 

served the State (such as in S.B. 418 providing not less 

than eight years in the Legislature) may not be granted 

such prior service when he becomes an officer or employee 

of the State and a member of the Employees Retirement 

System. 

Although Article 16, Section 62 of the Constitution provides that the Legislature shall have the authority to make 

- 2059 - 
Hon. H. D. DeBerry, Jr., Page 5 (M-413) 

such reasonable inclusions in the State Retirement System as 

it deems advisable the power of.the Legislature 

elusions is limited by the following portion of 

Mona1 Article, to wit; 

to make insuch constitu9, 

. and may make such reasonable inciuiions exclusions or classifications 

of offi&s and employees of this State 

as ‘it deems advisable." 

The power of the Legislature to make inclusions in the 

Retirement System is limited by the phrase "officers and 

employees of this State." Before a person can be included 

in the Retirement System he must be either an employee or 

officer of the State. Insofar as S.B. 418, Section 4, Subsection E, 61st Legislature, attempts to make non-officers 

or employees of the State members of the System such legislation exceeds the power conferred by Article lb, Section 62 

of the Constitution and is unconstitutional. Since this Act 

contains a severability clause, the validity of the remaining 

portions of the Act are not affected and a person who is now 

or in the future becomes a state employee or elected official, 

if otherwise eligible, may qualify under the terms of this Act. 

It is the opinion of this office that the above quoted 

portion of House Bill 902, Acts of the 58th Legislature, R.S. 

1963, Chapter 524, p. 1372, in no manner restricts or limits 

the power of the Legislature to enact S.B. 418, Section 4, 

Sub-section E, 61st Legislature. Not only does the Legislature have the inherent power to amend prior acts, but also 

Article 16, Section 62, Sub-section A, of the Constitution of 

the State of Texas specifically confers on the Legislature 

the authority to make such reasonable inclusion of officers~ 

and employees of the State in the Ret.irement System as it 

deems advisable. 

SUMMARY 

Senate Bill 418, Section 4, Sub-section E, 

61st Legislature does not destroy or impair a vested right. Therefore such legislation is not such retroactive legislation 

as prohibited by Article I, Sec. 16 of the 

Constitution of the State of Texas. Senate 

Bill 418, Section 4, Sub-section E, 61st 

Legislature as applied to a person who is not 

serving the State in either an elective 

capacity or as an employee Is unconstitutional and is in violation of Article III, 

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Hon. H. D. DeBtrry, Jr., Page 6, (M-413) 

Section 44 of the Constitution of the 

State of Texas, which prohibits extra 

compensation to be paid to an officer 

or employee of the State of Texas after 

his public service has been performed. 

Ii. B. 902, Acts 

1963, Chapter 92 2 

8th Legislature R.S. 

, p. 1372 does not 

prohibit the Legislature from passing 

Senate Bill 418, Section 4, sub-section 

E, 61st Legislature. 

/Y 

Prepared by Louis 0. Neumann I/ 

Assistant Attorney General 

APPROVED: 

OPINION COMMITIEE 

Kerns Taylor, Chairman 

George Kelton, Co-Chairman 

John Reeves 

Harold Kennedy 

Jack Goodman 

James Quick 

W. V. Geppert 

Staff Legal Assistant 

Hawthorne Phillips 

Executive Assistant 

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