The Honorable Everett L. Anschutz 

Executive Secretary 

Opinion No. H- 634 

Employees Retirement System of Texas Re: Effective date of Senate Bill 

Box 12337, Capitol Station 90 relating to interest in the EmployAustin, Texas 78711 ees Retirement System. 

Dear Mr. Anschutz: 

You have requested our opinion concerning the effective date of Senate 

Bill 90 of the 64th Legislature, (1975). Section 10 of the bill amends article 

6228a. section 7, V. T. C. S., to read as follows: 

B. The State Board of Trustees, on August 31, 1975, 

and thereafter on the last day of each fiscal year 

year, shall transfer from the Interest Fund to the 

Employees Saving Fund interest computed at the 

rate of five per cent (5%) on the mean balances of 

the amounts for the fiscal year standing to the 

credit of all members. In addition, the Board 

shall, as required during the year, transfer interest from the Interest Fund to the Employees 

Saving Fund in amounts equal to the interest 

credited during the year to members whose accounts are closed by death, retirement, or withdrawal of contributions. (Emphasis added). 

. . . 

Section 8A(l)(t) of article 6228a, was amended to provide: 

After August 31, 1974, intetest computed at the rate of five 

5%) per cent year on amounts credited to the accounts of individual members is earned monthly, to be credited on 

August 31, 1975, and thereafter on the last day of each fiscal year. However, after the last day of the month in which 

this Act takes effect, interest shall be credited to accounts 

closed by death or withdrawal of contributions through the 

last day of the month preceding the calendar month in which 

death occurs or in which the withdrawal request is validated 

by the Employees Retirement System, and interest shall be 

credited to accounts closed by retirement through the date 

of retirement. Interest shall be computed on the mean balance standing to the credit of the member for the fiscal year, 

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The Honorable Everett L. Anschutz - Page 2 (H-634) 

or for the applicable portion of the fiscal year in case of 

death, retirement, or withdrawal of contributions. 

(Emphasis added). 

Senate Bill 90 contained an emergency clause and was passed by a record vote ot 135-O by the House. However, the Senate passed the Bill by a 

voice vote and therefore it may not take effect until 90 days “after the adjournment of the session. ” Tex. Const. art. 3, sec. 39; Morris v. Calver~t,~ 

329 S. W. 2d 117 (Tex. Civ.App. - - Austin 1959, writ ref’d., n. r. e. ). 

The Legislature adjourned at midnight, June 2, 1975. Your question 

arises from the opinion of the Court of Civil Appeals in Morris, supra, where 

in dicta, a statute was said to be effective on the 90th day after adjournment 

(adjourned June 7, held effective September 5). The 90th day after the June 2 

adjournment would be August 31, and as you have indicated Morris would 

suggest that Senate Bill 90 would be effective at 12:Ol a.m. on that date. However, we cannot avoid the conclusion that the court in Morris erred in suggesting that act to be effective owseptember 5, and we believe that its effective date 

was September 6. This would not have constituted reversible error in that case, 

for the question before the court was whether the Act was in effect on July 19. 

The method for computing the effective date of a “90-day act” is stated 

in Halbert v. San Saba Springs Land & Live-Stock Association, 34 S. W. 639 

(Tex. Sup. 1896). In that case the Legislature adjourned on March 31, and the 

act in question was held effective on June 30, the 91st day after adjournment, 

or after 90 days. The Halbert case has been cited repeatedly as controlling 

the method of computation of time in other circumstances. See Union Assur. 

sot. v. Equitable Trust Co., 

-- 

58 S. W. 2d 58 (Tex. Comm. 1933;)Rudco Oil 

& Gas Co. v. Lemasters, 146 S. W. 2d 806 (Tex. Civ.App. --Eastland 1940, 

writ dism., jdmt. corr. ); Snow v. Snow, 223 S. W. 240 (Tex. Civ. App. --San 

Ant,onio 1920, no writ). Accordingly, it is our opinion that Senate Bill 90 becomes effective at 12:Ol A.M., September 1 1975, the 91st day after adjournment. 

However, the clear intent of the Legislature was to compute the interest 

to be transferred on August 31, 1975, at the rate of 5%. Since the effective date 

of the Bill is September 1, such a transfer would require a retroactive effect to 

be given to the Bill. While article 1, section 16 of the Texas Constitution prohibits retroactive statutes, it is well established that this prohibition does not extend to all statutes. 53 Tex. Jur. 2d Statutes, $28. 

[sl tatutes . . . may operate retrospectively when 

it is apparent that such was the intention, provided 

no impairment of vested rights results. cox v. 

Robison, 150 S.W. 1149, 1156 (Tex.Sup. 1912). 

Section 16, Art. l., prohibits the making of retroactive laws in so far as they destroy or impair 

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The Honorable Everett L. Anschutz - Page 3 (H-634) 

vested. rights. Deacon v. City of Euless, 405 

S. W,. 2d 59. 62 (Tex. Sup. 1966) 

See also Texas Water Rights Commission v. Wright, 464 S. W. 2d 642 (Tex. 

Sup. 1971); American Surety Co. of New York v. Axtell Co. 36 S. W. 2d 715 (Tex. 

Sup. 1931); City of Fort Worth v. Morrow. 284 S. W. 275 (Tex. Civ.App. --kt. 

Worth 1926, writ ref ‘d. ): and Atto mrney General Opinion H-14 (1973). Attorney 

General Opinion M-28 (i$67) held that a statute which allowed death benefits to survivors of certain state employees could not be given a retroactive effect. However, 

that opinion cited only “no writ” cases from the Courts of Civil Appeals which held 

article 1, section 16, to prohibit a retroactive law which “creates a new obligation, 

[or] imposes a new duty . . in respect to transactions or considerations already 

passed. ” Tu.rbeville v. Gowdy, 272 S. W. 559, 561(Tex. Civ. App. --Ft~ Worth 1925, 

no writ). We have discovered no such restrictions in a Texas Supreme Court case 

and do not believe the purpose of article 1, section 16 was to prevent the Legislature from imposing all retroactive obligations on the State particularly where no 

vested rights are impaired. See Texas Water Rights Commission v. Wright, supra. 

While Turbeville may constitute a correct statement of the law With respect tolt?le 

imposition of new obligations on parties other than the State, in our opinion it is 

not applicable to retroactive obligations of the State. Accordingly, while M-28 

dealt with a recently enacted constitutional provision and therefore involved different 

facts from those before us, Attorney General Opinion M-28 is overruled to the extent it conflicts with this opinion. 

In our view Senate Bill 90 in no manner impairs vested rights and in light of 

the Legislature’s clear intention to enlarge the August 31, 1975, transfer it may be 

given a retroactive effect. In addition, the Legislature expressly provided that 

after August 31, 1974, interest was to be earned monthly and credited on August 31, 

1975. In our opinion this provision is valid for the foregoing reasons. However, 

that portion of the Bill regarding interest credited on accounts closed by death or 

withdrawal, of contributions is not operative until 

which [the] Act takes effect, ” 

“after the last day of the month in 

and therefore is not operative until October 1, 1975. . 

SUMMARY 

Senate Bill 90 will be effective at 12:Ol AM 

September 1, 1975. Those portions of the 

Act which provide for monthly earnings of 5% 

interest to be credited on August 31, 1975, 

may be validly given effect. The portion dealing with interest credited on accounts closed 

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The Honorable Everett L. Anschutz - Page 4 (H-634) 

by death or withdrawal of contributions is not 

operative until after the last day of the month 

in which the Act takes effect which is 12:Ol 

AM October 1, 1975. 

Very truly yours, 

Attorney General of Texas 

Opinion Committee 

jad 

p. 2799