August 209 1969 

Honorable Gordon H. Lloyd 

Executive Secretary 

Board of Trustees 

Employees Retfrement System of Texaa 

Capitol Station 

Austin, Texas 78711 Opfnfon No. M-450 

Reg Constitutionality of 

allowing credit time 

for certain Military 

Service under Art. 

6228a, V.C.S., performed prior to state 

employment (H.B. 1065, 

Chap. 814, page 2433, 

Acts of 61st Leg., 

1969 1. 

Dear Mr. Lloyd: 

On September 1, 1969, House Bill No. 1065, Chapter 814, 

Acts of the 61st Legislature, Regular Session, page 2433, will 

become a law. Your Board of Trustees of the Employees Retlrement System of Texas has requested an opinion concerning the 

constitutlonalfty and application of House Bill 1065. 

From consideration of the above requests you desire the 

answer to two questiona: 

1. Whether it fa constltutfonal for the Legislature to provide that members of the Employees Retirement System receive credit 

for retirement servfeep for time spent as 

a member of the mflftary 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 conflict with 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 servfce under House Bfll No. 

1065% 

In answer to your ffrst question, we hold ttia't'it, is 

constitutional for the Legfslature to provide that members of 

the &ployees Ret%rement System recefve credit for retirement services for tfme spent a8 a member of the military 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 Compensation Fund for 

the officers and employees of the State, and 

may make such reasonable fnclusions, or classi-' 

fications of officers and employees of this 

State as It deema advisable. 

House Bfll 1065 is a reasonable inclusion of a class 

of state employees or officials who have served their state 

and nation fn the mflitary service prfor to befng employed by 

the state, 

We hold that the Legfelature may legally allow credit 

to members of the Employees Ret%rement System for prior m%l%- 

tary service because it serves a beneficent and useful governmental function and stfmulates and rewards fafthful public 

service. See reasonfng fn Attorney General's Opinions 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 prfor m%l%tary servfce was for a publfc purpose, as it stated fn the Emergency Clause "that the provisions of this Act w%Pl provfde the State wfth more experienced 

personnel and wfll fnduce continued servfee to the State,:.,' 

As is outlined fn the above cfted Attorney General's opinion's, 

a statute such a8 R.B. 1065, serves a beneffcent and useful 

governmental functfon $n its propensfty for stimulating and 

rewarding faithful publfc servfees. As stated above, the 

Legislature found that aafd B%l% was for a publfc purpose. The 

determination of publfc purpose fs prfmarfly a legislatfve 

function and will not be reversed unless manffestly arbitrary. 

-"E236- 
Hon. Gordon H. Lloyd, page 3 (M-450) 

The fact that individuals are benefilted from funds expended 

therefor is immaterial. See Attorney General Opinions Nos. 

M-391 (1969) and C-530 (1965). Thus prospectively applied, 

the Act is not fn violation of Article I, Sectfon 16 or 

Sections 44, 51, or 53 of Article III, Constitution of Texas. 

It does not fnvolve a gift for private or Individual purposes. A sfmilar statutory amendment providing for such 

military service credft for teachers retirement was 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 constitutionality are 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%rement System are excluded from receiving credit 

for military service, Section 2, of H.B. 1065, supras subsection (c) reads as follows: 

“(Cl Notwithstanding any other provision herein, no person, otherwise eligible for credit for mllftary service herein, shall be 

eligible to such credit if such person 

shall be receiving or hereafter receives 

any military retirement provided by any 

federal law or regulation or federal retirement act, for at least 20 years active duty.’ (Emphasis added. ) 

Those members 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 the Armed Forces of the Unfted States (as distinguished 

from the members of the Reserve Forces of the United States 

or National Guard) are excluded from receiving credit for military 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 "for at least 20 years active duty in subsection (c) of H-B. 1065. "Active duty" connotes full-time 

service as a professfonal member 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 limited active 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 dishonorable discharge 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 Rnployees Retirement System of the 

State of Texas. This statute validly permits members of the Rmployees Retirement 

System to receive credit for retirement 

service for service in the military 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 the Armed Forces of 

the United States (as dlstlnqulshed from 

the members of the Reserve Forces of the 

United States or National Guard) are excluded from receiving credit for military 

service. Under H.B. 1065, persons who 

have been or are relieved from active 

military duty by a dishonorable discharge 

are also excluded from credit 

for military service. 

eneral of Texas 

Prepared by Roger Tyler 

Assistant Attorney General 

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. . 

Hon. Gordon H. Lloyd, page 5 (M-450) 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

Houghton Brownlee 

Harold Kennedy 

Neil Willlams 

IQU%S Neumann 

W. V. GEPPERT 

Staff Legal Assistant 

HAWTHORNE PHILUPS 

Executive Assistant 

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