The Honorable Everett L. Anschutz Executive Secretary Opinion No. H- 634 Employees Retirement System of Texas Re: Effective date ofSenate Bill Box 12337, Capitol Station 90 relating to interest inthe EmployAustin, Texas 78711 ees Retirement System.
Dear Mr. Anschutz:

You have requested our opinion concerning the effective date ofSenate Bill 90 ofthe 64th Legislature, (1975). Section 10ofthe bill amends article 6228a. section 7, V. T.C.S., to read as follows:
B. The State Board of Trustees, onAugust 31, 1975, and thereafter onthe last day of each fiscal year year, shall transfer from the Interest Fund to the Employees Saving Fund interest computed atthe rate offive per cent (5%) onthe mean balances of the amounts for the fiscal year standing to the credit ofall members. Inaddition, 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) ofarticle 6228a, was amended to provide:

After August 31, 1974, intetest computed atthe rate offive 5%) per cent year onamounts credited to the accounts of individual members is earned monthly, tobe credited on August 31, 1975, and thereafter onthe last day of each fiscal year. However, after the last day ofthe month inwhich this Act takes effect, interest shall be credited to accounts closed by death or withdrawal of contributions through the last day ofthe month preceding the calendar month inwhich death occurs or inwhich 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 onthe mean balance standing to the credit ofthe member for the fiscal year,

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or for the applicable portion ofthe fiscal year incase of death, retirement, or withdrawal of contributions. (Emphasis added). Senate Bill 90 contained an emergency clause and was passed by arecord vote ot 135-O by the House. However, the Senate passed the Bill by a voice vote and therefore itmay not take effect until 90 days “after the adjournment ofthe 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 atmidnight, June 2, 1975. Your question arises from the opinion ofthe Court of Civil Appeals inMorris, 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. onthat date. However, we cannot avoid the conclusion that the court inMorris 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 inthat case, for the question before the court was whether the Act was in effect onJuly 19.

The method for computing the effective date ofa “90-day act” is stated inHalbert v. San Saba Springs Land &Live-Stock Association, 34S.W. 639 (Tex. Sup. 1896). Inthat case the Legislature adjourned onMarch 31, and the act inquestion was held effective onJune 30, the 91st day after adjournment, or after 90 days. The Halbert case has been cited repeatedly as controlling the method of computation oftime inother 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, nowrit). 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 ofthe Legislature was to compute the interest tobe transferred onAugust 31, 1975, at the rate of 5%. Since the effective date ofthe Bill is September 1, such a transfer would require a retroactive effect to be given to the Bill. While article 1, section 16 ofthe Texas Constitution prohibits retroactive statutes, it is well established that this prohibition does not extend to all statutes. 53Tex. Jur. 2dStatutes, $28.



# [sltatutes
. . . may operate retrospectively when it is apparent that such was the intention, provided no impairment ofvested 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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vested. rights. Deacon v. City ofEuless, 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. ofNew York v. Axtell Co. 36 S.W. 2d 715 (Tex. Sup. 1931); City ofFort Worth v. Morrow. 284 S.W. 275 (Tex. Civ.App. --kt. Worth 1926, writ ref‘d. ): and AttomrneyGeneral 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 aretroactive effect. However, that opinion cited only “no writ” cases from the Courts of Civil Appeals which held article 1, section 16, to prohibit aretroactive law which “creates anew obligation, [or] imposes anew duty

. . in respect to transactions or considerations already passed. ” Tu.rbeville v. Gowdy, 272 S.W. 559, 561(Tex. Civ. App. --Ft~ Worth 1925, nowrit). We have discovered no such restrictions inaTexas Supreme Court case and donot believe the purpose ofarticle 1, section 16was to prevent the Legislature from imposing all retroactive obligations onthe State particularly where no vested rights are impaired. See Texas Water Rights Commission v. Wright, supra. While Turbeville may constitute acorrect statement ofthe law With respect tolt?le imposition ofnew obligations on parties other than the State, inour opinion itis not applicable to retroactive obligations ofthe State. Accordingly, while M-28 dealt with arecently enacted constitutional provision and therefore involved different facts from those before us, Attorney General Opinion M-28 is overruled to the extent itconflicts with this opinion.

Inour view Senate Bill 90 in no manner impairs vested rights and inlight of the Legislature’s clear intention to enlarge the August 31, 1975, transfer itmay be given aretroactive effect. Inaddition, the Legislature expressly provided that after August 31, 1974, interest was to be earned monthly and credited onAugust 31, 1975. Inour opinion this provision is valid for the foregoing reasons. However, that portion ofthe 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 ofthe month in and therefore is not operative until October 1, 1975.

. SUMMARY
Senate Bill 90will be effective at 12:Ol AM September 1, 1975. Those portions ofthe Act which provide for monthly earnings of 5% interest to be credited onAugust 31, 1975, may be validly given effect. The portion dealing with interest credited on accounts closed

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by death or withdrawal of contributions is not operative until after the last day ofthe month inwhich the Act takes effect which is 12:Ol AM October 1, 1975. Very truly yours,

Attorney General ofTexas

Opinion Committee jad

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