E NEY GENERAL TEXAS

AUSTIN. **TEXAS** 78711

November 25, 1969

Honorable Ed Keys County Attorney Ward County Monahans, Texas

Dear Mr..Keys: OpinionNo. M-520
Re: ConstructJonof Article 6228g, Vernon's civil Statutes, relating to Texas County and District Retirement System.
Your request for an opinion asks the folloulng question: "Does'subparagraph2(a), Sec. 3, Art. 6228g, T.R.C.S.; permit those employeeswho do not desire to enter into the Retirement Plan to'refrain from so doing by giving written notice to the CommissionersCourt?" The retirement system for officers and employees of the several counties and other political subdivisionscreatedby the provisions of Article 6228g, Vernon's Civil Statutes', was authorized by the provisions of Subdivision (c) of Section 62 of ArticleXVI of'the Constitution of Texas. Pursuant to such subdivision Kc) of Section 62 7, the Legislature establisheda system of-retirement,dlsabnity and death benefits for all of the officers and employees of the several counties and other political subdivisionsof the State and of the various political subdivisionsof the several counties of the State known as the "TexasCounty and District Retirement System."

Subdivision 2 of Section 3 of Article 6228g, provides in part: “2. Participationof Employees.

"Themembership of the System shall be composed as follows: "(a) All personswho are employees of a participating subdivisionon the effective date of Its participation In the System shallbecome members of the System as of that date; provided,

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Hon. Ed KeYa, Page 2 (M-520)

however, that this provision shall not apply to tshEf ;I; prson, except by his consent,who ;; ec ive date of participationhas a b i employmentwith the subdivisionwhich would be violatedby the requirement that he become a member; but each such person, being notified that the governingbody has determined that the subdivision shallparticipate In the System, shall be deemed to have consented and elected to become a member of the System,unless prior to the date fixed for participationhe shall file with the governingbody, written notice of his election not to become a member. Any person so electing not to become a member, may at any time thereafter during his employmentby the subdivision and before he becomes fifty-eightyears of age elect to become a member of the System as of the first day of the calendarmonth following filing by him with the Board and with the governing body, of notice of his wish to become a member, but in such event he shall enter the System without credit or claim of credit for prior service or other service, and shall for purposes of this Act be consideredas a person entering the employment of the subdivisionfor the first time on the date he becomes a member of the System." (Emphasisadded.) Subdivision 2 of Section 3 above quotedprescribes themembership of the systemand specificallyprovides that all persons who are this caseWard emplo ees of the participating subdivision (in

County 3 shallbecomemembers of the system on the effective date of the subdivision'sparticipation in the system. There is only one proviso or exception, and the exception applies only to an employeewho on the effective date of participation has a basis of employmentwith the subdivisionwhich would be violatedby the requirement that he become a member. Such person may waive his contractualright not to become a member of the system. In otherwords, the provisowas included for the purpose, In our opinion, to prevent the question arising as to whether the provisions of Article 6228gabridged an obligation of contractby excepting from its provisions those employeeswho have a contractual right with the county whichmight be violated. This constitutional question was removed. It Is our opinion that the proviso applies only to persons (if any exist) who have a basis of employmentwith the subdivisionwhich would be violatedby the requirement that he become a member. All other employeesautomaticallybecomemembers of the system and have no right to refrain from becomingmembers.

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SUMMARY Under subparagraph 2(a), Section 3, Article 6228g, v.c.s., all persons who are employees of a participating subdivision on the effectivedate of its participation in the Texas County and District Retirement System automaticallybecome members of the system on the effective date the subdivisionelects to participate In the system and cannot refrain from doing so, except in those instances in which the employee has a basis of employmentwith the subdivisionwhich would be violatedby the requirement that he become a member.

General of Texas Preparedby John Reeves AssistantAttorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman George Kelton, Vice-Chairman Fisher Tyler Gordon Cass Bill Allen James Quick
MEADE F. GRIFFIN Staff Legal Assistant
NOLA WRITE First Assistant

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