August 209 1969

Honorable GordonH. Lloyd Executive Secretary Board of Trustees Employees Retfrement System of Texaa Capitol Station Austin, Texas 78711 OpfnfonNo. M-450 Reg Constitutionalityof allowing credit time for certain Military Service under Art. 6228a, V.C.S., performedprior to state employment (H.B. 1065, Chap. 814, page 2433, Acts of 61st Leg., 19691.
Dear Mr. Lloyd:

On September 1, 1969, House Bill No. 1065, Chapter 814, Acts of the 61st Legislature,Regular Session, page 2433, will becomea law. Your Board of Trustees of the Employees Retlrement System of Texas has requested an opinion concerning the constitutlonalftyand applicationof House Bill 1065.
From considerationof the above requestsyou desire the answer to two questiona:

1. Whether it fa constltutfonalfor the Legislature to provide thatmembers of the Employees Retirement System receive credit for retirement servfeep for time spent as a member of themflftary service,during the time the United States was or fs involved fn organized conflict,whether fn a state of war or a police action lnvolving conflictwith foreign forces, or for reason of criefs within this country.

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Hon. Oordon Ii.Lloyd, page 2(M-450)

2. What members of the Employees Retfrement System are excluded from recefvfng credit for mflftary servfceunder House Bfll No. 1065%
In answer to your ffrst question,we hold ttia't'it, is constitutionalfor the Legfslature to provide thatmembers of the &ployees Ret%rement System recefve credit for retirement services for tfme spent a8 a member of themilitary ser-' vice, as set forth in House Bill 1065. Article XVX, Sectfon 62, Texas Constitution (adopted Nov. 8, 1966) reads, in part, as follows: "(a) The Legislature shall have the authority to levy taxes to provide a State Retirement, Msabflity and Death CompensationFund for the officers and employeesof the State, and may make such reasonable fnclusions,or classi-' ficationsof officersand employeesof this State as It deema advisable.
House Bfll 1065 is a reasonable inclusion of a class of state employeesor officials who have served their state and nation fn themflitary serviceprfor to befng employed by the state,
We hold that the Legfelaturemay legallyallow credit to members of the Employees Ret%rement System for priorm%l%- tary service because it servesa beneficentand useful governmental functionand stfmulatesand rewards fafthfulpublic service. See reasonfng fn Attorney General'sOpinions M-138 (1967),M-408 (1969),and M-413 (1969). Furthermore, the Legislature in House B%ll 1065 found that such Bfll, In p.rovlding credft for prform%l%tary servfcewas for a publfcpurpose, as it stated fn the Emergency Clause "that the provisions of thisAct w%Pl provfde the State wfth more experienced personnel and wfll fnduce continued servfee to the State,:.,' As is outlined fn the above cftedAttorney General'sopinion's, a statute such a8 R.B. 1065, serves a beneffcentand useful governmental functfon $n its propensfty for stimulatingand rewarding faithfulpublfc servfees. As stated above, the Legislature found that aafd B%l% was for a publfc purpose.The determinationof publfcpurpose fs prfmarfly a legislatfve function and will not be reversed unlessmanffestly arbitrary.

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The fact that individualsare benefilted from funds expended therefor is immaterial. See Attorney General Opinions Nos. M-391 (1969) and C-530 (1965). Thus prospectivelyapplied, theAct is not fn violationof Article I, Sectfon 16 or Sections 44, 51, or 53 of Article III, Constitutionof Texas. It does not fnvolve a gift for private or Individualpurposes. A sfmilar statutoryamendmentproviding for such military service credft for teachers retirementwas enacted in 1961 (Article 2922-1, Section 4, Vernon's Civil Statutes) and has been allowed by the Trustees of the Teachers Retirement System since that time.

In view of the settled rule that all doubts as to constitutionalityare resolved In favor of the statute, we conclude that it is constitutional. Sec. 184. 53 Tex. Jur.2d 277, Statutes,

As to the second question of what members of the EmployeesRet%rementSystem are excluded from receiving credit for military service, Section 2, of H.B. 1065, supras subsection (c) reads as follows:



### “(Cl Notwithstandingany other provision herein, no person, otherwise eligible for credit formllftary service herein, shall be eligible to such credit if suchperson shall be receiving or hereafter receives any military retirementprovided by any federal law or regulation or federal retirementact, for at least 20 years active duty.’ (Emphasisadded.) Thosemembers of the Fmployees Retirement System who receive OP hereafter receive any military retirement from the Federal Government, for at least 20 years active duty as a member of theArmed Forces of the Unfted States (as distinguished from themembers of the Reserve Forces of the United States or National Guard) are excluded from receiving credit formilitary service, and th%s exclusion is a reasonable exclusion under the provisions of Article XVI, Section 62, Texas Constitution. Our reasoning as to this conclusion Is baatd on the use of the words "forat least 20 years active duty in subsection (c) of H-B. 1065. "Activeduty" connotes full-time service as a professfonalmember of the military forces of the

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Hon. Gordon H. Lloyd, page 4 (M-450)

Fedesal Government,while service In a Reserve or National Guard component Involves only limitedactive duty periods during summer camps, service schools,drill days and similar periods of active duty training. 10 U.S.C.A. 1333. Under H.B. 1065,persons who have been or are relieved from active duty by a dishonorabledischarge are also excluded from receiving credit for military service.

SUMMARY
H.B. 1065, Chapter 814, page 2433, Acts of the Regular Session, 61et Leg., 1969, la constitutional,and allows credit for retirement service for military service prior to state employment, for members of the RnployeesRetirement System of the State of Texas. This statute validly permits members of the RmployeesRetirement System to receive credit for retirement service for service in themilitary forces as set forth in H.B. 1065. Those members of the Employees Retirement System who receive or hereafter receive any military retirement from the Federal Government, for at least 20 years active duty as a member of theArmed Forces of the United States (as dlstlnqulshed from themembers of the Reserve Forces of the United States or National Guard) are excluded from receiving credit formilitary service. Under H.B. 1065,persons who have been or are relieved from active military duty by a dishonorabledischarge are also excluded from credit for military service.

eneral of Texas
Prepared by Roger Tyler Assistant Attorney General

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Hon. GordonH. Lloyd, page 5 (M-450)

APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman George Kelton,Vice-Chairman Houghton Brownlee Harold Kennedy Neil Willlams IQU%SNeumann
W. V. GEPPERT Staff Legal Assistant
HAWTHORNE PHILUPS ExecutiveAssistant

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