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The Attorney General of Texas 

November 16, 1977 

Honorable Thomas S. Bishop 

Major General, TexARNG 

The Adjutant General 

Austin, Texas 

Dear General Bishop: 

Opinion No. H-1092 

Re: Validity of policy 

requiring State employees 

of Adjutant General's 

Department to retire on 

becoming eligible for two 

annuities. 

You inquire about the validity of the retirement policy 

applied to the State employees in your department. We note 

that your department supervises a large number of federal employees by virtue of 32 U.S.C.A. § 709, but your request does 

not concern them. 

Your retirement policy is as follows: 

10. Retirement. a. Retirement Policies. 

To establish an equitable retirement policy 

that will encourage employees to take advantage of their earned annuities and thereby enhance the upward mobility opportunities 

of other employees to earn retirement benefits, the following policy affecting retirement of State employees will be implemented 

by the Adjutant General's Department. 

(1). Those employees who have earned 

two or more annuities will be expected to 

retire at the end of the month the second 

earned annuity becomes effective, however 

each potential retiree will have the option 

to continue employment until 31 December of 

the year in which these annuities are earned 

(to include reduced Social Security at age 

62). Such annuities will include any combination of the following: 

Active Military Retirement (Army, 

Air Force, Navy, Marines, Coast Guard, 

Merchant Marine) 

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Honorable Thomas S. Bishop - Page 2 (H-1092) 

State Retirement 

Civil Service Commission Retirement 

or Postal or Railroad Retirement 

Reserve Military Retirement 

(2). Retirement effective on 31 

December of any calendar year will enable 

an individual to defer lump sum payment 

of accrued annual and sick leave to the 

next calendar year for tax purposes. 

Staff Memorandum l-l (PS) 1 September 1976. Although the policy 

states that employees are *expected" to retire, it is administered as a mandatory retirement policy. Employees are dropped 

from the employment roles of the department by December 31 of 

the year in which they are expected to retire. Thus, employees 

must retire when they become eligible to receive, for example, 

reduced social security at age 62, and State retirement, available at age 60 to persons with ten years of service. A more 

common combination of annuities for State employees in your 

office consists of reduced social security and reserve military 

retirement, available at age 60 to persons with 20 years of 

service. 10 U.S.C.A. 5 1331. You have provided us with statistics about retirements pursuant to this policy for 1976 through 

1978. Of 20 past and prospective retirees, the policy allows 

three to work until age 65. One may work until 64, while the 

rest must retire at 63 or earlier. 

Article 5781, section 8, V.T.C.S., provides in part: 

The Adjutant General shall prescribe 

regulations not inconsistent with the law 

for the government of his department. . . . 

The Adjutant General's policies with respect to State employees 

in his office must be consistent with State law. See Attorney 

General Opinion M-719 at 7 (1970). Article 6252-14,V.T.C.S., 

provides as follows: 

No agency, board, commission, department, 

or institution of the government of the 

State of Texas, . . . shall establish a maximum age under sixty-five (65) years nor a 

minimum age over twenty-one (21) years for 

employment, nor shall any person who is a 

citizen of this State be denied employment 

by any such agency, board, commission, 

department or institution or any political 

p. 4487 
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Honorable Thomas S. Bishop - Page 3 (H-1092) 

subdivision of the State of Texas solely 

because of age; provided, [exceptions not 

here applicable1 . . . . 

Sec. 2. We find no statute that excepts the Adjutant General's 

Department from the operation of article 6252-14, V.T.C.S. Cf. 

Ed. Code S 13.903. This office has construed article 6252-140 

prohibit the establishment of a compulsory retirement age under 

65. Attorney General Opinion C-178 (1963); see also Attorney 

General Opinion H-753 (1975). Retirement bei%i?iErovided by 

statute generally become available at a particular age. See, 

-, 10 U.S.C.A. S 1331; V.T.C.S. art. 6228a, S 5; art. 6228b, 

S 2; art. 6228g, S 7. Your policy mandates retirement at the 

point when an employee becomes eligible for retirement benefits 

under certain statutes. It thus indirectly links mandatory 

retirement to the achievement of a particular age. Since the 

relevant annuities may be earned as early as 60 and are usually 

earned before 65, we believe your policy effectively establishes 

a range of mandatory retirement ages, most of which are under 

65. In our opinion, your policy is inconsistent with article 

6252-14, V.T.C.S., and therefore invalid. 

SUMMARY 

The policy of the Adjutant General's 

Department that requires State employees 

to retire when they become eligible for 

two annuities, such as military reserve 

retirement benefits and reduced social 

security benefits, is inconsistent with 

article 6252-14, and thus invalid. 

Very truly yours, 

ttorney General of Texas 

,,APPROVED: 

irst Assistant 

c. ROBERT HEATH, Chairman 

Opinion Committee 

jst 

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