. . . J 

October 2, 1957 

Honorable Cordon H. Lloyd 

Executive Secretary 

Opinion No. ww-268 

Employees Retirement System Re: Construction of 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 previously waived 

membership or withdrawn deposits with the Employees Retirement 

System. In connection therewith you have submitted for our consideration the following questions: 

"1 . A person who waived membership with the 

Employees Retirement System within 90 days from 

the establishment of the System September 1, 

1947, and who now desires to become a member of 

the Employees Retirement System and deposit with 

this System the amounts which would have been 

paid by him if he had not waived. 

"westion: Is the Employees Retirement 

System permitted to accept such amounts 

from this person and grant all prior service and membership service to which this 

person would have been entitled had he 

never signed a waiver? 

"2. A person who had signed a waiver electing not 

to become a member of the Employees Retirement System, but who thereafter became 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%ployees Retirement System had he not signed a 

waiver. 
: . . 

Honorable Cordon H. 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 signed a waiver 

with the Employees Retirement System, and 

grant him such service to which he would have 

been entitled had 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 thereafter became a member of 

the Teacher Retirement System and now desires to replace the amount withdrawn from the Employees Retirement System and re-establish his service for 

retirement purposes. 

"Question: Is the Employees Retirement SystZ&i'pe$mxtted to accept deposits from this 

person who had withdrawn, but subsequently 

became a member of the Teacher Retirement 

System, and grant him, after replacement of 

the amount withdrawn, the membership and 

prior service to which he would have been 

entitled had he not withdrawn his contributions?" 

The answer to the questions submitted depends upon 

the legal construction of House Bill No. 441. The provisions 

of House Bill 441, pertinent to our inquiry, are as follows: 

"5. Reinstatement of Former Service Credits. 

"(a) Any teacher or auxiliary employee who 

has heretofore executed a waiver of membership in 

the Retirement System shall have the privilege 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 

deposited had he been a member of the System during 

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 for membership in the System, together 
Honorable Cordon H. Lloyd, page 3 (w-268) 

with interest from the date each amount was 

payable at the rate of two and one-half percent (23$) per annum. 

"(b) Any person who heretofore became a 

member of the Retirement System and who thereafter terminated such membership and withdrew 

his accumulated deposits, but who has since 

returned to service as a teacher or auxiliary 

employee or who returns to service as a teacher 

or auxiliary employee prior to September 1, 

1959, and who, following such resumption of 

membership, renders service for five (5) consecutive years, shall have the privilege of depositing the total amount withdrawn nlus all 

back assessments and dues, together with simole 

interest thereon at two and one-half per cent 

@%tg 

er annum from date of withdrawal of stime 

of redeposit and thereupon such member 

shall be entitled to'credit for all prior service 

and membership former service to which he was entitled prior to such termination and withdrawal. 

The amounts to be deposited shall be determined 

in each case by the Board of Trustees and in no 

event shall any such person be granted retirement upon such former service credits until the 

amount so determined shall have been paid in full. 

"Provided further, that membership in either 

the Teacher Retirement System or the State Employees Retirement System would qualify an individual to deposit funds in either of the two systems 

under the provisions of this Act." (Emphasis added) 

Pursuant to the provisions of Section 63 of Article 

XVI of the Constitution of Texas, reciprocal joint retirement 

is authorized and provided for under the Teachers and Employees Retirement Systems of Texas. Th~is constitutional provision reads as follows: 

"Sec. 63. Qualified members of the Teacher 

Retirement System, in addition to the benefits 

allowed them under the Teacher Retirement System 

shall be entitled to credit in the Teacher Retirement System for all services, including prior service and membership service, earned or rendered 

by them as an appointive officer or employee of 

the State. Likewise, qualified members of the 

Employees Retirement System of Texas, in addition 
Honorable Cordon H. Lloyd, page 4 (ww-268) 

to the benefits allowed them under the Pnployees 

Retirement System of Texas shall be entitled to 

credit in the Employees Retirement System of Texas 

for all services, including prior service and membership service, earned or rendered by them as a 

teacher or person employed in the public schools, 

colleges, and universities supported wholly or 

partly by the State. Added Nov. 2, 1954." 

The foregoing constitutional provision permits free 

and easy passage of career employees of the State between 

teaching and State department service. It enables administrative officials to employ personnel from positions covered under 

one system to positions covered under the other system, without disturbing the accumulated credits for retirement purposes. 

Subsequent to 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 said Act provides in substance that members of either the Teachers or the State &ployees Retirement Systems who have terminated or waived membership 

in either of said Systems may claim and receive credit for prior 

service in either System by complying with the provisions thereof. It is noted, however, that there is a limitation with 

respect to the time in which a member may comply with 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 

categories presented by your letter, it must be by reason of 

the final paragraph of said Bill which we have underscored for 

emphasis. The meaning of this paragraph is not free from doubt. 

We think, however, that that portion thereof which 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 system but is denied the right to receive credit for prior service in the Employees Retirement 

System would 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 case may 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 employee by complying with the provisions of said 

Bill. The effect of our interpretation is 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 for prior 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 System by members of either the 

Teachers or Rnployees Retirement Systems 

are equally applicable to the purchase of 

credits for prior service in the Employees 

Retirement System by 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