# The Attorney General of 

# Texas August 7, 1979 MARK WHITE Attorney General HonorableJoseph N. Murphy, Jr. OpinionNo. MW-40 Executive Director Employees Retirement Systemof Texas Re: Credit of legislative service P. 0. Box 12337,Capitol Station for judicial retirement. Austin,Texas 787R Dear Mr. Murphy: You have requested our opinion regarding the crediting of legislative service for judicial retirement. Specifically, you ask whether section 2B of article SZZSb,

V.T.C.S., is constitutionaL That statute provides: i2B. The time served in the Legislature of the State of Texas by anyjudge coming within the purview of this statute shall be credited to the length ofjudicial service. In Attorney General Cpiiion M-830 (1971), this office, relying on the Supreme Court’s decision in Retirement System of Texx’

ttlhe Legislature may net constitutionally authorize benefits under the Judicial Retirement System to be based in part on services rendered as a member of another retirement system..
. . In light of this opinion, we believe that, at least in 1971, section 2B of article 6228b’was unconstitutionab In 1975, however, the voters approved article XVI, section 67, of the Texas Constitution, which, inter alia, authorized the legislature to “enact general laws establishing systems and programs of retirement..

. .” The subsection relating to the Judicial Retirement System now provides, in pertinent part:

(d) Notwithstanding any other provision of this section, the system of retirement, disability, and survivors’ benefits heretofore established in the constitution or by law for justices, judges, and

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HonorableJoseph N. Murphy, Jr. - Page Two (Hw-40)

commissioners of the appellate courts and judges of the district and criminal district courts is continuedin effect..

. . Attorney General Opinion H-1073 (1977)held that the ratification of article XVI, section 67 was sufficient to remove doubt about the constitutionality of a statute which permitted the transfer of retirement credit from the County and District Retirement System to the Judicial Retirement System. The statute under consideration there, however, section LOB(b)of article 1926a,V.T.C.S., had been origiiaRy enacted in 1977, subsequentto the ratification of article XVI,section 67. By contrast, the statute at issue here, section 2B of article 62284 was enacted in 1969,andhasnot been amended. It is well established that a statute whichis forbidden by the Constitution at the time of its passage is absolutely null and void, and is not validated by a subsequent amendmentto the Constitutionauthorizingit to passsuch an act. State ex reL Rogers v. Swanson, 219 N.W.2d 726, 729 (Neb. 1974). See also GraysonRobinson Stores, Inc. v. Oneida, Ltd., 75 S.E.2d 16l, 163(Ga. 19531, cert. denied, 346 U.S. 823 0953); State ex reL Stevenson v. Tufly, 22 P. 1054(Nev. 1890);Dullam v. Wilson, 19 N.W. R2 (Mich. %884). To hold that a constitutional amendment is curative of an unconstitutionalstatute

would give the amendment the effect of enacting laws instead of merely authorizing the legislature to do so, and it would be to. enact a law to which no reference was made, andwhich the people in adoptingthe amendmentcould.not have hadin mind. Bonaz v. Smith, 65 P. 309, 310 (CaL 19Ol). Unless the amendment itself specifically validates a previously unconstitutionalstatute, as’in Hutchinsonv. Pat&ii& 126 SW. 1107 (Tex. 1910X

the statute remains void and may be made effective only by reenactment Grayson-RobinsonStores, susu at 164. We conclude, therefore, that section 2B of article 6228b is presently unconstitutionaL Accordingly, legislative service may not be credited for purposesof calculatingjudicial retirement eligibility or benefits. SUMMARY Section 2B of article 62284 V.T.C.S., which authorized the

‘

. crediting of legwlative service for purposes of calculating judicial retirement benefits, remains unconstitutional and has not been revived by the ratification of article XVI, section 67of the Texas Constitution.

@4fG%?& Attorney General of Texas

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HonorableJoseph N. Murphy, Jr. - Page Three (NW-40 1

JOHNW. FAINTER,JR. First AssistantAttorney General TED L. HARTLEY Executive AssistantAttorney General Preparedby Rick Gilpin AssistantAttorney General APPROVED: OPINION

COMMITTEE C. Robert Heath, Chairman

. Dawd B. Brooks

. SusanGarrison .Rick Gilpin ‘~“’

.. HarryGreen WilliamG,Reid Bruce Yqqblood :;,Y ,~

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