- . 

THE ATTORNEY GENERAL 

OF -XAS 

May4, 1971 

Hon. John A. Traeger Opinion No. M-848 

Chairman, Constitutional 

Amendments Committee Re: Construction of 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: 'System of Texas. 

Your request for an opinion on the above subject matter 1 

asks the following questions: 

"1 . Would S.J.R. 9, If passed by a twothirds majority of both Houses of the Legislature and approved by the electorate at 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 should pass at the election in 

November, 1972, would one invalidate the provisions of the other?" 

Section 48a of Article III of the Constitution of Texas 

provides in part: 

II 

. . . no person shall be eligible for 

retirement who has not rendered ten (10) years 

of creditable service in such employment, . . .' 

The proposed amendment by S.J.R. 2 would reduce the ten-year 

minimum service requirement to five years. 

fund 

Section 48a further provides: 

,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. 

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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 state pension 

or retirement fund, contributed by the state, 

is released to the State of Texas as a con{ition 

to receiving such other pension aid; . . . 

The proposed amendment by S.J.R. 9 would remove the last quoted 

provision from Section 48a. 

In Attorney General's Opinion M-196 (1968) it was held 

that Section 7 of Article 2922-lij Vernon's Civil Statutes (Optional Retirement Program for Teachers) violated the last quoted 

provision of Section @a of Article III; Constitution of Texas. 

The amendment to Section 48a proposed by S.J.R. 9 would rem*? 

from the Constitution such prohibition, but would contain the 

prohibition that 'no person shall be eligible for retirement who 

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-year requirement to five years creditable service, 

but would not remove the prohibition relating to receiving benefits 

from more than one retirement fund, 

Therefore you are advised that if S.J.R. 9 is adopted by 

the people and S.J.R. 2 is not adopted, the prohibition relating to 

the receiving of State retirement funds from more than one retirement 

fund would no longer be 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 judicially2 determined to be 

invalid, It Is our opinion that if the prohibition referred to In 

Attorney General's Opinion M-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 adopted by the people, such prohibition 

would remain In the Constitution of Texas and Section 7 would be in 

violation of Section 48a as amended by S.J.R. 2 for the reasons stated 

in Attorney General's Opinion M-196. Likewise, if S.J.R. 9 is 

2 Opinions of the Attorney General are not judicial declarations 

of the law as are opinions of the Courts. His opinions are advisory only. Articl~e 4399, V.C.S. While they may 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 courts unless 

clearly wrong. San Antonio Union 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'may be 

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 consideration by the courts which 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 person who has not rendered ten years of creditable 

service In the employment of the public schools, colleges and 

universities, supported wholly 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-year requirement 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 constitutional change would be effected. 

S U 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 

Constitution of 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 

shall not 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, contributed by 

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, such provision will not be removed from 

the Conntitutlon of Texas, 

If S.J.R. 9 is not adopted, the ten-year 

minimum service requirement for eliglbillty under 

the Teacher Retirement System will be reduced from 

ten to five years, If S.J.R. 9 is also adopted, 

however, the ten-year minimum service requirement 

will remain In the Constitution of Texas. 

If both S.J.R. 2 and S.J.R. 9 were to be 

adopted, no constitutional ch ngc would be effected. 

A 
.- _, 

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

Prepared by John Reeves 

Assistant Attorneg 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 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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