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 .Texaa $8: .t ~Eligibllity of acaounting and cua- .'todial

clerks in the,officeof 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.bovesubject is as followa:~ ~.- ~'

"H. B. 168, Fiftieth LegislatureIof Texas, providesfor certain retirement benefits,State employees.:, Paragraph 1,. CiroularNo. A, 7 May 1946, office of the Chief,National Guard Bureau authorizes the Adjutant General of the State to employ and/or disoharge, civilianticcounting clerks to assist the U. 6. Property and Disbursing Officers ins the performante of theirduties. Paragraph 6 of t&s
same circularauthorizesthe Adjutant General to determine the rate of pay 

### of the, above mentioned accounting~olerks within limitations. Paragraph 7 of this circular authorizesthe 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 'insimilarwork.
"Although

the subject accounting clerks a're

paid from~

Federal.

funds,,they
are in effect State employees, sincethey
a.re employedby the Adjutant General, who sets their rate of pay, and determinestheMajor GeneralK. 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 requestedon the followingquestion:

"Are accountingandcystodial clerks employed in the 

### off300 or the u..S. Property and DisbursingMficer for Texas,. under the provisionsof N. 0. B. Circular No. 4, 7 May i9 

### 6, subject~tothe provia-, ions of H. D. ii

1 8; FiftiethLegislature 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 informationis desired as to whether subject employees oan become eligible for retirement, under the provisions of H. B. 168, while they are performing servicesfor the State of Texas, and receivingtheir pay from Federal funds." ~':.

' The eligibilityof the described employees depends solely upon whether they are withinthe con:~~ ~_ templationof 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~fromand:charged.tothe 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 aontributionsby the.Stateof Texasaa part of the total funds of the Systemis oalled the Wtat,eMembership AccumulationPund." Contributions by the state as setMajor 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 oolleationof the State's oontributions is contained inParagraph Z.of.,Subaeotion B of seation 8.which contemplates atthe outset that 

### funds appropriatedto the payment'.of salaries shall be,reappropriatedto the exte.nt neoesaary to make up,the initial.oontribution,by the~~state.This Procedure is oarried out by oertifioa,tlon bythesSta.teBoard 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 Ctiptrollertom the 'State

Employees RetirementFund rromthe reapeotivefunds appropriatedto departments. Thereafter,similar certifications are made before eaoh session of the Legislature in order tha,t proper appropriationsmay be made. Obviously from the.abwe, it appears that this law oould not be oanplied.wd.th in reapeot to,

the employeesnamed Sn your inquiry, if for no other reason than that the~initialcontributions by the State~are taken from appropriations by the State Legialature setting up the normal funds' ror~ then payment of -employeesof 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 disclosedby the method provided for effecting the employee'scontributionto the fund. .Subparagrapha Of:Paragraph 1 of SubsectionB Of Section 8 dealingwith the golleotionof member's contributions preaoribeathat "each department of the State shallcause to be deduoted on each and every pay roll of a member for each.endevery pay roll period beginning on the date of then establishment

of the membership.

and full operation or the RetirementSystem the contributions payable by' such member, as provided in this Act

. . ." Subparagrtiph'b'maikes

furtherprovisionsdealing with payroll deduations; The provisionsof the Aot further provide that payrolls

deauationsand membership shall be automatio. Obviously,the State of Texas is in no 

### pOSitiOn
to enforcenor to effect payroll deductions from a Federal payroll.

,b¶ajor GeneralK. L. Berry, 2134 Page A, V-336.

outlined

Therefore,under the circumstances

_ in your letter, it is the opinion of,thla departments that such accountingclerks are not contemplated by House Bill No. 168.

As to your final inquitiy and ~requeat

for ink' formationas to whether auch.employees,oan become eligible for retirement, we have zead the entire Act-and find no provision for the acoeptanoeof members other than those employedand paid by the State. We might suggest that should the funds from whioh such etiployeea are paid be contributeddirectly to the4tate iron the FederalGovernmentand thereafterappropriated.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.TexasLegislature, audh employeea'might beg eligible. However, these:arematters for the Legislature and the appropriate Federal authority.

.STJMMARY', .Accounting

clerks employed, supervised and'aubjeotto dischargeby 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.