### EATTORNEYGENERAL OF TEXAS

W’ILL WILSON ATTORNEY **GENERA=-** August 24, 1960

Mr. Frank M. Jackson Executive Secretary OpinionNo. WW-912
Teacher Retirement System Re: Austin, Texas Questions relating to the payment of the State matching contribution to the, Teacher Retirement System occurring during the fiscal

Dear Mr. Jackson: year ending August 31st, 1959.
Your request for an opinion reads in part as "During the fiscalyear ending August 31, 1959, the teachers' contributionsof the Teacher Retirement System of Texas exceeded the estimate of contributionsof membersby one million, nine hundred eighty-eight thoufollows:

sand, two hundred fifty-five dollars and nine cents ($1,988,255.09). On September 1, 1959, a letter concerning said deficit in the State's matching contributionswas received from the HonorableRobert S. Calvert, Comptroller of PublicAccounts, and reads in part as follows: II

..... 'HouseBill 5, First Called Session, 56th Legislature charged the allocations from the Omnibus Tax Fund, with the result there is no money available to transfer to the System'.

"Ke respectfully requestyour opinion concerning the following questions:
"1. Is the C.omptroller of PublicAcc,ounts req~uireci

to pay tne 'l'eacher Retirement System the above deficit in State's matching contributions?
"2. If the answer to question number one is in the negative, is House Bill 

### 5 in conflict with Article 

### 3,section 48-a of the Constitution of Texas?"Mr. Frank M. Jackson,page 2 (w-912)

Subsection 

### (3)of Section 2 of Article 7083a, Vernon's Civil Statutes, as amended by House Bill 

### 5,Acts of the 

### 56thLegislature,First Called Session, chapter 1, page 9 at page 10, provides:

"Beginningwith the fiscalyear starting
on September 1, 1959, and annually thereafter, there is hereby allocated and appropriated to the Teacher Retirement System of Texas in accordance with the provisions of SenateBill No. 47, Acts of the Regular Session,Forty-fifth Legislature, 

### 1937,and any amendments thereto, a sum each year equivalent to the contributionsof the members of the TeacherRetirement Svstem during saidyear. Said annual allocated and appropriated amounts shallbe paid to the Teacher Retirement System in equal installmentsduring the months of November,December, March, April, June and July of each fiscal year beginningwith the year starting September 1, 

### 1959,based upon the annual estimate by the State Board of Trustees of the Teacher Retirement System of the contributionsto be received from the members of said System during each such fiscalyear; provided further, that in the event said estimate of the contributionsof the members of the System shallvary from the actual amount of the teachers' contributionsduring the year, then such adjustments as may be required shall be made on the first day of the following fiscal year with any moneys in or due the General Revenue Fund."
Subsection (2) of Section 11 of Article 2922-1,Vernon's Civil Statutes, provides:

"The depositing of the State's contributions shallbe made as follows: "(a) On or before the first day of November, next preceding each Regular Session of the Legislature, the State Board of Trustees shall certify to the State Comptroller for his review and adoption the amount necessary to pay the matching contributionsof the State of Texas to the Teacher Retirement System for the ensuingbiennium. This amount shallbe included in thebudget of the State which the Governor submits to the Legislature. The State Board of Trustees shall certify on or beforeMr. Frank M. Jackson, page 

### 3 (W-912)

August 31st of eachyear to the State Comptroller of PublicAccounts and to the State Treasurer the estimated amount of contributions to be received from members during the ensuingyear. "(b) All monies allocated and appropriated by the State to the Teacher Retirement System shallbe paid to the Teacher Retirement System in monthly installmentsas provided in House Bill No. 

### 8, Acts of the Regular Session, 47th Legislature. ,Eachof said monthly installments shallbe paid into the State Contribution Fund."
The current appropriation to the Teacher Retirement System reads as follows:

"1,

"2. "TEACHERRETIREMENT SYSTEM
There is hereby appropriatedand the Comptroller and Treasurer are For the Years .Ending

_ .'- authorized and directed to trans- August 

### 31, 1960 Au,gust

### 31, fer into a special trust account 

### 1961 in the hands of the Treasurer, the unexpendedbalances as of August 

### 31, 1959,of the various funds of the Teacher Retirement System, estimatedas follows: Teacher SavingsFund No. 

### 133...$1,200,000 State ContributionFund No. 

### 134 1,000 Retire+ Reserve Fund No. 

### 135... 105,000 InterestFund No. 

### 136.......... 1,000,000 Expense Fund No. 

### 137........... InvestmentFund No. 

### 138........ 75,000 975,000 There is hereby appropriatedand allocated out of the Omnibus Tax Clearance Fund to the Teacher Retirement System the State contributionsnecessary to match member contributions, estimated to be

......w..............31,700,OOO $32~,800,000 TOTAL ESTIMATED APPROPRIATIONS, TEACHER RETIREMENT 

### SYSTEM...........$~~,O~~,OOO $32,800,000~~

From September lst, 1959, all funds in the Teacher Retirement System constitutea separate trust accountwith the StateMr'.

Frank M. Jackson, page 4 (WW-912)

Treasurer as custodianrather than funds in the State Treasury + Attorney General'sOpinionswwT65 (1959)and ~~-600 1959). Thus, it is necessary to issue a warrant on the State Treasu- to transfermoney to the Teacher Retirement System out of the State Treasury into a special trust fund of the Teacher Retirement System in the custody of the StateTreasurer.

We are informedby the Comptroller'sOffice that all the sums appropriated to the Teacher Retirement System for the fiscalyear ending August jlst, 1960have been paid to the Teacher Retirement System. While the Legislatureauthorized the payment of the deficit mentioned in your request from the GeneralRevenue Fund,no appropriation for this deficitwas made to the Teacher Retirement System. Therefore, you are advised that the Teacher Retirement Systemhas a claim against the General Revenue Fund of the State of Texas for this deficit,which may be paid when such sum is appropriated by the Legislature. Article III, Sec. 48a, Texas Constltution,H.B. 5, Acts of the 56th Leg., 1st C.S., 1959, ch. 1, p. 9. In this connection, it is noted that the appropriation contained in Item 2 of the appropriation to the Teacher Retirement Systemwas made out of the Omnibus Tax Clearance Fund and did not appropriate any additional sum from the GeneralRevenue Fund. As is noted above, this fund has been completelyexhausted for'the fiscalyear ending August 31st, 1960.

In answer to your first question,you are therefore advised that the Comptrollerof PublicAccounts is not authorized to issue a warrant atthe present time payable to the Teacher Retirement System for the deficit of the State's matching contribution,for the reason that no money has been appropriated for that purpose.
In answer to your second question, the provisions of House Bill 5, Acts of the 56th Legislature,First Called Session, are constitutional. Attorney General's Opinion WW-640.

SUMMARY

No appropriation to the Teacher Retirement System for the payment of any~deficit in Statematching contributionhaving been enacted, the Comptrollerof Public Accounts is not authorized ,toissue a warrant for theMr. Frank M. Jackson, Page 5 (WW-912)

payment of the deficit in the State's matching contributionsresulting from the teachers' contributionof the Teacher Retirement System exceeding the estimate of contributionsmade by the System.
Such deficit'constitutesa claimwhich may be paid when an appropriation Is made to the Teacher Retirement System for such deficit, as provided in Article 70&a, Vernon's Civil Statutes.

Yours very truly,

WILL WILSON Attorney General of Texas

Assistant JR:ms
APPROVED:
OPINION COMMI'E'PTEE W. V. Geppert, Chairman

F. C. Jack Goodman Phocion S. Park III W. Ray Scruggs

REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.