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## EATTORNEY GENERAL OFTEXAS

AUSTIN. **TEXAS** 78711 CRAWFO- C. MARTEN
June 9',1969

Hon. B. D. DeBerry, Jr Chairman, Board of Trustees BmployeesRetirement System of Texas Capitol Station Austin, Texas 78711 OpinionNo. M-413
Re: Constitutionalityof S.B. 418, Section 4, SubDear Mr. DeBerry: sectionE, 61st Legislature Recently you requestedan opinion on the constitutionality of S.B. 418, Section 4, SubsectionE, 61st Legislature reading as follows:

"Anyperson who was an Elective State Official and who has servednot 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 58thLegislature as amended)may become a member of the Bmployees Retirement System by paying into such s stemTwo Hundred Eighty-eight Dollars (

i288) for eachyear of service in the Legislature of Texas. Provided further, any suchpersonmust make application to become a member and pay in such sumsprior to January 1, 1970. Such application shallbe made on forms provided by the Board, and thereupon, suchperson,shallbe entitled to all the privileges&d benefits of such system."
A considerationof the constitutionalityof the above provision involves twoArticles of the Constitutionof the State of Texas. Article I, Section 16, thereof states:

"NObill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts shallbe made."

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Article III, Section 44 of the Constitutionprovidesz
"TheLegislature shallprovideby law for the compensationof all officers, servants,agents and public contractors, not provided for in this Constitution, but shallnot grant extra compensation to any officer, agent, servantor public contractors, after suchpublic service shallhave been performed or contract entered into, for the performance of the same;.nor grant,by appropriationor otherwise, any amount of money out of the Treasury of the State, to any individual, on a claim, real or pretended,when the same shallnot 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 thatArticle III, Section 53, Constitution of Texas provides, in part, that "TheLegislature shallhave no power to grant.
. .any extra compensation,fee or allowance to a public officer e . . after servicehas been rendered, or a contracthas been entered into, and performed in whole or part.
. .' This sectionwas includedprimarily 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 askedwhether the Legislature can enact S. B. 418, Section 4, Sub--section E, 61st Legislature, it having previouslypassed into law House Bill 902,Acts 58th LegislatureR.S. lg639 Chapter 524, p* 1372 (Article 6228a,, Sec. 3B3,V.C.S.), a portion thereof reading as follows:

"Anyperson who on January 1, 1963, is an elective State official as definedherein, shall,before October 1, 1964, executean election to become a member of theRetirement System as of January 1, 1963, or electionnot to become a member of the Retirement System. This election to become a member or not to become a member shall be filedwith the State Board of Trustees on a formprovided by the Board. The

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electionnot to become a member will include a duly executedwaiver of all present and prospectivebenefitswhich would otherwise inure to him on account of his participation in the System. Contributions shallbe due and payable for themonth of January 1963, and eachmonth thereafter,and membership service shallbegin as of January 1, 1963. "Anyperson who becomes an elective State Official by reason of election or appointment after January 1, 1963, shallwithin six (6) months from themonth in which he takes the oath of office or October 1, 1964, whichever date is later, execute an election to become a member of theRetirement System or hot,to become a member of the Retirement System. This election to become a member or not to become a member shallbe filed with the State Board of Trustees on a formprovided by the Board. The electionnot to become a member will include a duly executed waiver of all present and prospectivebenefits which would otherwise inure to him on account of his participation in the System. Contrlbutions shallbe due and payable for the month in which he takes the oath of office, and eachmonth thereafter, and membership service shallbegin 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 thereofprohibiting 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, 155 Tex. 174 284 S.W.2d 898 (19551. The Legislaturehas the power to a& both retro_.. , spectivelyand prospectively. Article I, Section 1.6of the Constitutiononly prohibits the Legislature from passing retroactive legislationthatwill impair or destroy vested rights.

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Senate Bill 418 grants to certain individuals the opportunity to becomemembers of the EmployeesRetirement System. Because aright is createdby Senate Bill 418, as opposed to destroying a vested right, such legislation does not violateArticle I, Section 16 of the Constitution of the State of Texas. By its terms S.B, 418, Section 4, Sub-sectionE, 61st Legislaturepermits any person who was an Elective State Official and who has servednot less than eightyears in the Legislature of Texas to become a member of the Employees Retirement System upon certain conditions. This legislation affects not only personspresently serving the State in one capacity or anotherbut it also includespersons 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 8 Tex, 28, E 938 (Tex.Civ.App.1459 ante, 325 S.W.2d Departments v. City of'A%Tz .Austin Fire 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. 4Ear?'l4;' of'the Constitution expresslyprohibits extra compensationto be paid to any officer, agent, servantor public contractor after theirpublic servicehas been performed. Inasmuch as S.B. 418, Section 4, Sub-sectionE, 61st Legislature would permit persons who are not serving the State in one capacity or another to become a member of theRetirement 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 Constitutionof Texas. This does not mean, however, that an individualwho has, prior to the effectivedate of Article 6228a, Sec. 3B3, served the State (such as in S.B. 418 providing not less than eightyears in the Legislature)may not be granted suchprior servicewhen he becomes an officer or employee of the State and a member of the EmployeesRetirement System. Although Article 16, Section 62 of the Constitutionprovides that the Legislature shallhave the authority to make

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such reasonable inclusions in the State Retirement System as it deems advisable the power of.the Legislature elusions is limitedby the followingportion of Mona1 Article, to wit; to make insuch constitu9,

.and may make such reasonable inciuiions exclusionsor classifications of offi&s and employees of this State as ‘itdeems advisable."
The power of the Legislature to make inclusions in the Retirement System is limitedby the phrase "officersand employees of this State." Before a person can be included in the Retirement Systemhe 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 conferredby Article lb, Section 62 of the Constitutionand is unconstitutional. Since thisAct contains a severabilityclause, the validity of the remaining portions of theAct 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 thisAct.
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 inherentpower to amend prior acts, but also Article 16, Section 62, Sub-sectionA, of the Constitutionof the State of Texas specificallyconfers 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 prohibitedby 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, -2060-Hon. H. D. DeBtrry, Jr., Page 6, (M-413)

Section 44 of the Constitutionof the State of Texas, which prohibits extra compensation to be paid to an officer or employee of the State of Texas after his public servicehas been performed. Ii.B. 902, Acts 1963, Chapter 9228th LegislatureR.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 ExecutiveAssistant

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