E NEY GENERAL 

TEXAS 

AUSTIN. TEXAS 78711 

November 25, 1969 

Honorable Ed Keys 

County Attorney 

Ward County 

Monahans, Texas 

Dear Mr..Keys: 

Opinion No. M-520 

Re: ConstructJon of Article 

6228g, Vernon's civil 

Statutes, relating to 

Texas County and District 

Retirement System. 

Your request for an opinion asks the folloulng question: 

"Does'subparagraph 2(a), Sec. 3, Art. 

6228g, T.R.C.S.; permit those employees who 

do not desire to enter into the Retirement 

Plan to'refrain from so doing by giving 

written notice to the Commissioners Court?" 

The retirement system for officers and employees of the 

several counties and other political subdivisions created by the 

provisions of Article 6228g, Vernon's Civil Statutes', was authorized by the provisions of Subdivision (c) of Section 62 of 

Article XVI of' the Constitution of Texas. Pursuant to such subdivision Kc) of Section 62 7, the Legislature established a 

system of-retirement, dlsabnity and death benefits for all of 

the officers and employees of the several counties and other 

political subdivisions of the State and of the various political 

subdivisions of the several counties of the State known as the 

"Texas County and District Retirement System." 

Subdivision 2 of Section 3 of Article 6228g, provides 

in part: 

“2. Participation of Employees. 

"The membership of the System shall be composed as follows: 

"(a) All persons who are employees of a 

participating subdivision on the effective date 

of Its participation In the System shall become 

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 

;I; prson, except by his consent, who ;; tshEf 

ec ive date of participation has a b i 

employment with the subdivision which would be 

violated by the requirement that he become a 

member; but each such person, being notified that 

the governing body has determined that the subdivision shall participate 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 participation he shall file with the 

governing body, 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 employment by the subdivision 

and before he becomes fifty-eight years of age 

elect to become a member of the System as of 

the first day of the calendar month 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 considered as a person 

entering the employment of the subdivision for 

the first time on the date he becomes a member 

of the System." (Emphasis added.) 

Subdivision 2 of Section 3 above quoted prescribes 

the membership of the system and specifically provides that all 

persons who are 

this case Ward 

emplo ees of the participating subdivision (in 

County 3 shall become members of the system on the 

effective date of the subdivision's participation in the system. 

There is only one proviso or exception , and the exception applies 

only to an employee who on the effective date of participation 

has a basis of employment with the subdivision which would be 

violated by the requirement that he become a member. Such person 

may waive his contractual right not to become a member of the 

system. In other words, the proviso was included for the purpose, 

In our opinion, to prevent the question arising as to whether the 

provisions of Article 6228g abridged an obligation of contract by 

excepting from its provisions those employees who have a contractual 

right with the county which might 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 employment with 

the subdivision which would be violated by the requirement that he 

become a member. All other employees automatically become members 

of the system and have no right to refrain from becoming members. 

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Hon. Ed Keys, Page 3 (~-520) 

SUMMARY 

Under subparagraph 2(a), Section 3, Article 

6228g, v.c.s., all persons who are employees of 

a participating subdivision on the effective date 

of its participation in the Texas County and 

District Retirement System automatically become 

members of the system on the effective date the 

subdivision elects to participate In the system 

and cannot refrain from doing so, except in those 

instances in which the employee has a basis of 

employment with the subdivision which would be 

violated by the requirement that he become a 

member. 

General of Texas 

Prepared by John Reeves 

Assistant Attorney 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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