The Attorney General of Texas 

August 7, 1979 

MARK WHITE 

Attorney General 

Honorable Joseph N. Murphy, Jr. Opinion No. MW-40 

Executive Director 

Employees Retirement System of 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 any judge coming within the purview of 

this statute shall be credited to the length of judicial 

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 

p. 116 
. . 

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

commissioners of the appellate courts and judges of the district and 

criminal district courts is continued in 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, 

subsequent to the ratification of article XVI, section 67. By contrast, the statute at issue 

here, section 2B of article 62284 was enacted in 1969, and has not been amended. 

It is well established that a statute which is 

forbidden by the Constitution at the time of its passage is 

absolutely null and void, and is not validated by a subsequent 

amendment to the Constitution authorizing it to pass such 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 

unconstitutional statute 

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, and which the people 

in adopting the amendment could.not have had in mind. 

Bonaz v. Smith, 65 P. 309, 310 (CaL 19Ol). Unless the amendment itself specifically 

validates a previously unconstitutional statute, as’in Hutchinson v. Pat&ii& 126 SW. 1107 

(Tex. 1910X the statute remains void and may be made effective only by reenactment 

Grayson-Robinson Stores, susu at 164. We conclude, therefore, that section 2B of article 

6228b is presently unconstitutionaL Accordingly, legislative service may not be credited 

for purposes of calculating judicial 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 67 of the Texas 

Constitution. 

@4fG%?& 

Attorney General of Texas 

p. 117 
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Honorable Joseph N. Murphy, Jr. - Page Three (NW-40 1 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

. Dawd B. Brooks . 

Susan Garrison 

.Rick Gilpin ‘~“’ .. 

Harry Green 

William G ,Reid 

Bruce Yqqblood :;,Y ,~ 

p. 118