**. .**  **. J** 

October 2, 1957

Honorable Cordon H. Lloyd Executive Secretary Opinion No. ww-268 EmployeesRetirement System Re: Constructionof House of Texas Bill No. 441, Acts 55th Austin, Texas Legislature,Regular Session, Chapter 116, page 240, and related Dear Mr. Lloyd: questions.

Your letter of September 19, 1957, requests an Opinion by this office regarding the status of either State employees, or teachers or auxiliary employees,who have previouslywaived membership or withdrawn depositswith the Employees Retirement System. In connection therewithyou have submitted for our considerationthe following questions:

"1

. A person who waivedmembershipwith the EmployeesRetirement Systemwithin 90 days from the establishmentof the System September 1, 1947, and who now desires to become a member of the Employees Retirement System and depositwith this System the amountswhich would have been paid by him if he had not waived.
"westion: Is the EmployeesRetirement Systempermitted to accept such amounts from thisperson and grant all prior service and membership serviceto which this person would have been entitledhad he never signed a waiver?
"2. A person who had signeda waiver electingnot to become a member of the Employees Retirement System, but who thereafterbecame a member of the Teacher Retirement System and now desires to deposit with the Employees Retirement System the amount that would have been paid by him to the l%ployeesRetirement Systemhad he not signeda waiver.:

. .

Honorable CordonH. Lloyd,page 2 (WW-268)

"Question:Is the Employees Retirement System permitted to accept the deposits of the teacher or auxiliary employee,now a member of the Teacher Retirement System, for the amount that would have been paid by him as a State employee,had he not signeda waiver with the EmployeesRetirement System,and grant him such service to which he would have been entitledhad he not signed the waiver?
"3

. A person who had become a member of the RVQ3lOYees Retirement System,resigned his positiOn and withdrew his contributions from the Employees Retirement System,but who thereafterbecame a member of the Teacher Retirement System and now desires to replace the amount withdrawn from the Employees Retirement System and re-establishhis service for retirementpurposes. "Question:Is the EmployeesRetirement SystZ&i'pe$mxtted

to accept deposits from this person who had withdrawn, but subsequently became a member of the TeacherRetirement System,and grant him, after replacement of the amount withdrawn, the membership and prior service to which he would have been entitledhad he not withdrawn his contributions?"
The answer to the questions submitteddepends upon the legal constructionof House Bill No. 441. The provisions of House Bill 441,pertinent to our inquiry, are as follows:

"5. Reinstatementof Former Service Credits. "(a) Any teacher or auxiliary employee who has heretofore executed a waiver of membership in the Retirement System shallhave theprivilege of **eleCti.ng** to receive full forer semrice credit, provided such teacher or auxiliary employee after becoming a member of the Retirement System shall deposit before August 31, 1959, all back deposits, assessments and dues which he would have paid or depositedhad he been a member of the Systemduring each of the years that he actually taught or was employed as an auxiliary employee in the public schools following the date on which he first became eligible formembership in the System, togetherHonorable Cordon H. Lloyd,page 3 (w-268)

with interest from the date each amountwas payable at the rate of two and one-halfpercent (23$)per annum. "(b) Any person who heretoforebecame a member of the Retirement Systemand who thereafter terminated suchmembership and withdrew his accumulated deposits,but who has since returned to serviceas a teacher or auxiliary employee or who returns to serviceas a teacher or auxiliary employeeprior to September 1, 1959, and who, following such resumption of membership, renders service for five (5) consecutiveyears, shallhave the privilege of depositing the total amount withdrawn nlus all back assessments and dues, togetherwith simole interest thereon at two and one-halfper cent @%tg er annum from date of withdrawal of stime

of redeposit and thereupon suchmember shall be entitled to'credit for all prior service and membership former service to which he was entitledprior to such termination and withdrawal. The amounts to be deposited shallbe determined in each case by the Board of Trustees and in no event shall any suchperson be granted retirement upon such former service creditsuntil the amount so determined shallhave been paid in full.
"Providedfurther, that membership in either the Teacher Retirement System or the State Employees Retirement Systemwould qualify an individual to deposit funds in either of the two systems under the provisions of this Act." (Emphasisadded)

Pursuantto the provisions of Section 63 of Article XVI of the Constitutionof Texas, reciprocal joint retirement is authorized and provided for under the Teachers and Employees Retirement Systems of Texas. Th~isconstitutionalprovision reads as follows:

"Sec. 63. Qualifiedmembers of the Teacher Retirement System, in addition to the benefits allowed them under the Teacher Retirement System shallbe entitled to credit in the Teacher Retirement System for all services, includingprior service and membership service,earned or rendered by them as an appointive officer or employee of the State. Likewise, qualifiedmembers of the Employees Retirement System of Texas, in additionHonorable Cordon H. Lloyd,page 4 (ww-268)

to the benefits allowed them under the Pnployees Retirement System of Texas shallbe entitled to credit in the Employees Retirement System of Texas for all services, includingprior serviceand membership service, earned or rendered by them as a teacher or person employed in the public schools, colleges,and universities supportedwholly or partly by the State. Added Nov. 2, 1954."
The foregoing constitutionalprovisionpermits free and easy passage of career employees of the Statebetween teaching and Statedepartment service. It enables administrative officials to employpersonnel frompositions coveredunder one system to positions coveredunder the other system,without disturbing the accumulated credits for retirementpurposes.

Subsequentto the adoption of this constitutional amendment in November, 1954, the Legislature enacted Senate Bill No. 212, Acts 54th Legislature,Regular Session, Chapter 75, page 356, codified as Article 6228a-2 of Vernon's Civil Statutes. Section 2 (A)and (B) of saidAct provides in substance thatmembers of either the Teachers or the State &ployees Retirement Systemswho have terminated or waived membership in either of said Systemsmay claim and receive credit for prior service in either Systemby complyingwith the provisions thereof. It is noted, however, that there is a limitationwith respect to the time inwhich a member may complywith such

E. rovisions. 41, Consequently,before the enactment of House Bill many members of both systems, for various reasons, were unable to purchase credit for prior service.

It is apparent that if House Bill 441 be construed to permit the purchase of credits for prior service in the Employees Retirement System in each or either of the three categoriespresented by your letter, itmust be by reason of the finalparagraph of said Bill which we have underscored for emphasis. The meaning of thisparagraph is not free from doubt. We think, however, that that portion thereofwhich authorizes a member of either system to deposit knds in either the Teacher Retirement System or the Employees Retirementtern is very significant in arriving at the intention of the Iegislature. To say that an employee is granted the right to deposit funds in either systembut is denied the right to receive credit for prior service in the Employees Retirement Systemwould be to grant such employees a right, but to deny him the benefits logically accruing therefrom. We conclude, therefore, that House Bill 441 authorizes state employees or teachers, as the casemay be, in each of the three categories set forth in your letter, to receive credit for prior service_ ._-

Honorable Gordon H. Lloyd,page 5 (wi-268)

as a State employeeby complyingwith the provisions of said Bill. The effect of our interpretationis to make the provisions of House Bill 441 applicable to the purchase of prior service credits in the Teachers Retirement System, equally applicable to the purchase of such credits 

### forprior service In the mployees Retirement System.

Each of your three questions is accordingly answered in the affirmative.
SUMMARY

The provisions of House Bill No. 441, Acts 55th Legislature,Regular Session, Chapter 116, page 240,pertaining to the purchase of credits for prior service in the Teachers Retirement Systemby members of either the Teachers or Rnployees Retirement Systems are equally applicable to the purchase of credits forprior service in the Employees Retirement Systemby members of either system.
Yours very truly,

WILL WILSON Attorney General of Texas

BY nard Passmore LP:jl:zt
APPROVED: OPINION COMMITTEE
Gee. P. Blackburn, Chairman Wayland C. Rivers, Jr.
John H. Minton, Jr.
W. V. Geppert
J. C. Davis, Jr.
YIEWED FOR THE ATTORNEY GENERAL : James N. Ludlum Assistant