- .

THE ATTORNEY GENERAL

OF -XAS

May4, 1971 Hon. John A. Traeger OpinionNo. M-848 Chairman,Constitutional Amendments Committee Re: Constructionof proposed House of Representatives amendments to Section 48a P. 0. Box 100, Capitol Station of Article III of the ConAustin,Texas 78767 stltution of Texas relating to the Teacher Retirement Dear Mr. Traeger: 'Systemof Texas.

Your request for an opinion on the above subjectmatter 1 asks the following questions:

"1
. Would S.J.R. 9, If passed by a twothirdsmajority of both Houses of the Legislature and approved by the electorateat the general election in November, 1972, revive Section 7 of S.B. 292, 60th Legislature, Regular Session, 1967 (V.C.S.Article 2922-ll)? "2. If the provisions of both S.J.R. 2 and S.J.R. 9 shouldpass at the election in November, 1972,would one invalidate the provisions of the other?" Section 48a of Article III of the Constitutionof Texas provides in part:

II

. . .no person shallbe eligible for retirementwho has not rendered ten (10)years of creditable service in such employment,
. . .' The proposed amendmentby S.J.R. 2 would reduce the ten-year minimum servicerequirement to fiveyears.

fund Section 48a furtherprovides: ,I

. . . the recipients of such retirement shall not be eligible for any other state

I Both S.J.R. 9 and S.J.R. 2 are pending in the 62nd Leg., R.S., 1971. -4111-’

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Hon. John A. Traeger, page 2 (M-848)
pension retirement funds or direct aid from the State of Texas, unless such other statepension or retirement fund, contributedby the state, is released to the State of Texas as a con{ition to receiving such other pensionaid;
. . . The proposedamendmentby S.J.R. 9 would remove the last quoted provision from Section 48a.

In AttorneyGeneral's Opinion M-196 (1968) it was held that Section 7 of Article 2922-lijVernon's Civil Statutes (OptionalRetirement Program for Teachers) violated the last quoted provision of Section @a of Article III; Constitutionof Texas. The amendment to Section 48a proposedby S.J.R. 9 would rem*? from the Constitution such prohibition,but would contain the prohibition that 'noperson shallbe eligible for retirementwho has not rendered then(10)years of creditable service in such employment."

The proposed amendment to Section 48a by S.J.R. 2 would reduce the ten-yearrequirementto five years creditable service, but would not remove the prohibitionrelating to receiving benefits frommore than one retirement fund,

Thereforeyou are advised that if S.J.R. 9 is adopted by the people and S.J.R. 2 is not adopted, the prohibitionrelating to the receiving of State retirement funds frommore than one retirement fundwould no longerbe contained In the Constitution,and Section 7 of Article 2922-11,Vernon's Civil Statutes, would no longer be invalid. Since Section 7 has not been judicially2determined to be invalid, It Is our opinion that if the prohibitionreferred to In Attorney General'sOpinionM-196 (1968) Is removed from the Texas Constitution,Section 7 would be in full force and effect. If, on the other hand, S.J.R. 2 Is adoptedby the people, such prohibition would remain In the Constitutionof Texas and Section 7 would be in violationof Section 48a as amended by S.J.R. 2 for the reasons stated in AttorneyGeneral's OpinionM-196. Likewise, if S.J.R. 9 is

2 Opinions of the AttorneyGeneral are not judicialdeclarations of the law as are opinions of the Courts. His opinionsare advisory only. Articl~e 4399,V.C.S. While theymay be disregarded as not having the force of law (Opln.No. 0-7234-A, 1946), on the other hand they will be given great weight by the courtsunless clearlywrong. San AntonioUnion Junior College District v. Daniel, 146 Tex. 241, 20b S.W.2d 995 (194/l; 93 Tex.Jur.2d 2b2-263 St atutes, 177. Failure to follow the opinion of the Attorney General'maybe evidence of lack of good faith (Opln.No.O-4715, 1942),while one whc does in good faith follow such an opinion may be entitled to receive favorable considerationby the courtswhich he would not otherwise receive. Wichita County v. Robinson, 155 Tex. 1, 276 S.W.2d 509, 515 517; Opin.No. WW-b71 (1959)

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Hon. John Traeger, page 3 (M-848)

adopted, no personwho has not rendered ten years of creditable service In the employment of the public schools, collegesand universities, supportedwholly or partially by the State, shall be eligible for retirement for the reason that Section 48a of Article III, as amended by S.J.R. 9 would contain such prohibition.

Therefore, in answer to your second question,you are advised that If both S.J.R, 2 and S.J.R. 9 are adopted by the people, the ten-yearrequirement contained In Section Q!a as then amended by S.J.R. 9, would apply as well as the prohibition against receiving State pension retirement funds from more than one retirement fund would apply. If both S.J.R. 2 and S.J.R. ‘3 were to be adopted, no constitutionalchangewould be effected. SU M M A R Y S.J.R. 2 and S.J.R. 9 propose two different amendments to Section 48a of Article III of the Constitutionof Texas, relating to the Teacher Retirement System of Texas. If S.J.R. 9 is adopted and S.J.R. 2 is not adopted, the pro- ;lbltlon currently contained In Section 48a,

. . . the recipients of such retirement fund shallnot be eligible for any other state pension retirement funds or direct aid from the State of Texas, unless such other state pension or retirement fund, contributedby the state, Is released to the State of Texas as a condlt$on to receiving such other pension aid;
. . will be removed from the Constitution of Texka. If S.J.R. 2 Is also adopted, however, suchprovisionwill not be removed from the Conntitutlonof Texas, If S.J.R. 9 is not adopted, the ten-year minimum service requirement for eliglbilltyunder the Teacher Retirement System will be reduced from ten to fiveyears, If S.J.R. 9 is also adopted, however, the ten-yearminimum service requirement will remain In the Constitutionof Texas. If both S.J.R. 2 and S.J.R. 9 were to be adopted, no constitutionalch ngc would be effected. A.- _,

Hon. John A. Traegcr, page 4 (M-848)

Preparedby John Reeves AssistantAttorneg General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Houghton Brownlee J. C. Davis Bob Lattlmore Max Hamilton MEADE F. GRIFFIN Staff Legal Assistant ALFREDWALKER ExecutiveAssistant NOLA WHITE First Assistant

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