R-663 

ml 

OFE’ICE OP 

,mE kFTOR% &-NER& 

AUSTIN. TEXAS 

PRICE DANIEL August 13,.. 1947 '. *TTO*NEY GENERAL 

Major Genera1.K. L. Berry Opinion No. V-336 

The Adjutant General of Texas 

Austin .t .Texaa $8: ~Eligibllity of acaounting and cua- 

.'todial clerks in 

the,office of the 1 

U., 6. Property and 

Disbursing .Orricer 

for Texas toqbenefita under the Employees ~Retirement 

System or Texas. 

Dear Sir: 

Your request for an'opinionon .tha a.bove subject is as followa:~ ~.- ~' 

"H. B. 168, Fiftieth LegislatureIof 

Texas, providesfor certain retirement 

benefits, State employees.:, Paragraph 1,. 

Ciroular No. A, 7 May 1946, office of the 

Chief, National Guard Bureau authorizes 

the Adjutant General of the State to employ and/or disoharge, civilian ticcounting clerks to assist the U. 6. Property 

and Disbursing Officers ins the performante of theirduties. Paragraph 6 of t&s 

same circular authorizes the Adjutant General to determine the rate of pay of the, 

above mentioned accounting ~olerks within 

limitations. Paragraph 7 of this circular authorizes the State Adjutant General 

to determine the hours of work' 'the accounting clerks thus employe~d, 

f 

u specifies that said hours of work wil not be 

leas than those set for other employees 

of the State engaged 'in similar work. 

"Although the subject accounting 

clerks a're paid from~ Federal. funds,,they 

are in effect State employees, sincethey 

a.re employed by the Adjutant General, who 

sets their rate of pay, and determines the 
Major General K. L. Berry, Pa&e 2, v-336. 

number of hours they shall work. The AdjutantGenera1 also may discharge said employees. In view or this your opinion is 

requested on the following question: 

"Are accounting andcystodial clerks 

employed in the off300 or the u..S. Property and Disbursing Mficer for Texas,. 

under the provisions of N. 0. B. Circular 

No. 4, 7 May i9 6, subject ~to the provia-, 

ions of H. D. 1 ii 8; Fiftieth Legislature of 

Texas, and are they eligible for retireme&under said ~bill? 

"If the opinion of the Attorney General on-this question is not in the ar- 

.fi?znativa, then information is desired as 

to whether subject employees oan become 

eligible for retirement, under the provisions of H. B. 168, while they are performing services for the State of Texas, and 

receiving their pay from Federal funds." ~':. 

' The eligibility of the described employees 

depends solely upon whether they are withinthe con: ~~ ~_ 

templation of House Bill No. 168. 

From examination.of .the.~cotnplete Aat, .we 

donolude that such employees a.re not contemplated ~by 

the Act. 

The. %embership.annuityv defined i.nSubseotion Q of Section l,,whia,h is one of the elements of 

the benefits ,provided~ for, is made up. Of %%3erve 

funds contributed by a megber~ *'an eq\al~amount,~ of

reserve funds contributed & -- the. %%e.' -- 

While the State mightcontribute~ to t&h a 

reserve fund on a basis of 'some percgntage.~of.~the, ai 

mounts paid such~ employees .by.the,Fedara,l Government, 

the Act does not so~.aontemplats:. .Qubseotion A Of. Section 8 provides that "all contributions.made by the 

State shall be~from and:charged.to the respeotiva, funds 

appropriated, allocated,~and providad, t,o,pay the salary or oompensation ,of,~,ths amploya~e for .whosa benefit 

the oontribut1on.i~ mad~e.n, The fund,,oreated by aontributions by the.State of Texasaa part of the total 

funds of the Systemis oalled the Wtat,e Membership 

Accumulation Pund." Contributions by the state as set 
Major Caneral K. L. Berry5 Page ,3, V-336. 203 

out in Subparagraph a~.of Paragraph 2 of $ubaeotlon 

A of Section 8 ia~.,under,a ~plan'ivhereby the State oontributes funds neoeasaryto make up ita.allooate'portlon of the fund's available for benefits to members. 

The meohanics for oolleation of the State's oontributions is contained inParagraph Z.of.,Subaeotion B of 

seation 8.which contemplates atthe outset that funds 

appropriated to the payment'.of salaries shall be,reappropriated to the exte.nt neoesaary to make up,the 

initial.oontribution,by the~~state. This Procedure 

is oarried out by oertifioa,tlon bythesSta.te Board of 

Trustees for the. Retirehient' System to the State Comptroller of Publio Accounts and the State.,Treaaurer of 

the total aompenaation paid to members and upon whioh 

the necessary amounta..are computed~ and transferred by 

the Ctiptroller tom the 'State Employees Retirement Fund 

rromthe reapeotive funds appropriated to departments. 

Thereafter, similar certifications are made before eaoh 

session of the Legislature in order tha,t proper appropriations may be made. Obviously from the.abwe, it 

appears that this law oould not be oanplied.wd.th in reapeot to, the employees named Sn your inquiry, if for no 

other reason than that the~initial contributions by the 

State~are taken from appropriations by the State Legialature setting up the normal funds' ror~ then payment of 

-employees of the State. The ,employees about whiah you 

inquire are.not @aid-from State apprspriations, and 

therefore, no manhinery is prOvidedfor a contribution 

by the State in their behalf. 

Further evidenoe of the faot that such employeesas you inquire about are not oontemplated by 

the Act, is disclosed by the method provided for effecting the employee's contributionto the fund. .Subparagraph a Of:Paragraph 1 of Subsection B Of Section 

8 dealing with the golleotion of member's contributions 

preaoribea that "each department of the State shallcause 

to be deduoted on each and every pay roll of a member 

for each.end every pay roll period beginning on the date 

of then establishment of the membership. and full operation or the Retirement System the contributions payable 

by' such member, as provided in this Act . . ." Subparagrtiph'b'maikes further provisions dealing with payroll 

deduations; The provisions of the Aot further provide 

that payrolls deauations and membership shall be automatio. Obviously, the State of Texas is in no pOSitiOn 

to enforce nor to effect payroll deductions from a Federal payroll. 

, 
b¶ajor General K. L. Berry, 

2134 

Page A, V-336. 

Therefore, under the circumstances outlined _ in your letter, it is the opinion of,thla departments 

that such accounting clerks are not contemplated by 

House Bill No. 168. 

As to your final inquitiy and ~requeat for ink' 

formation as to whether auch.employees,oan become eligible for retirement, we have zead the entire Act-and 

find no provision for the acoeptanoe of members other 

than those employed and paid by the State. We might 

suggest that should the funds from whioh such etiployeea are paid be contributed directly to the4tate iron 

the Federal Government and thereafter appropriated.by 

legislative ~enactment .for the payment of the salaries 

of such persor+s as employees of the Adjutant General*s 

Department, all subject of course to enabling legialation by the.Texas Legislature, audh employeea'might beg 

eligible. However, these:are matters for the Legislature and the appropriate Federal authority. 

.STJMMARY', 

.Accounting clerks employed, supervised 

and'aubjeot to discharge by the' Adjutant General of Texaa~, and whose rate of pay %s set 

by him, under authority 'of the United States 

Govermnent,'~hoae aalarisa a're paidto theme 

by the United States Government, are not within the provisions nor eligible, for benefits 

of the law creatiugthe %nployeea Retirement 

System of Texas." 

Yours very truly 

A’l?‘l!ORNEY GENRlUL'OF TRXAS 

NM0 : jmc Bea~MaDaniel 

,Asaiatant 

APPROVED: 

izz 22 

ATTORNRY GENERAL.