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# TheAttorney General ofTexas
November 16, 1977

Honorable Thomas S. Bishop Major General, TexARNG The Adjutant General Austin, Texas

Dear General Bishop: Opinion No. H-1092 Re: Validity ofpolicy requiring State employees ofAdjutant General's Department to retire on becoming eligible for two annuities. You inquire about thevalidity of the retirement policy applied to the State employees inyour department. We note that your department supervises a large number of federal employees by virtue of 32U.S.C.A. § 709,but your request does not concern them. Your retirement policy isas follows: 10. Retirement. a. Retirement Policies. To establish an equitable retirement policy thatwill 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 theAdjutant General's Department. (1). Those employees who have earned two ormore annuities will be expected to retire at the end of themonth the second earned annuity becomes effective, however each potential retiree will have the option to continue employment until 31December of theyear inwhich these annuities are earned (toinclude 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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State Retirement Civil Service Commission Retirement or Postal or Railroad Retirement Reserve Military Retirement (2). Retirement effective on 31 December of any calendar yearwill enable an individual todefer lump sumpayment of accrued annual and sick leave to the next calendar year for taxpurposes. Staff Memorandum l-l (PS)1 September 1976. Although the policy states that employees are *expected" to retire, it is administered as amandatory retirement policy. Employees are dropped from the employment roles of thedepartment byDecember 31of the year inwhich 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 tenyears of service. A more common combination of annuities for State employees inyour office consists of reduced social security and reserve military retirement, available at age 60 topersons with 20years of service. 10U.S.C.A. 5 1331. You haveprovided uswith statistics about retirements pursuant to thispolicy for 1976 through 1978. Of 20past and prospective retirees, thepolicy allows three towork until age 65. Onemay work until 64,while the rest must retire at 63or earlier. Article 5781, section 8,V.T.C.S., provides inpart:

The Adjutant General shall prescribe regulations not inconsistent with the law for the government ofhis 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 thegovernment of the State of Texas, . . .shall establish amaximum age under sixty-five (65)years nor a minimum age over twenty-one (21)years for employment, nor shall anyperson who is a citizen of this Statebe denied employment byany such agency, board, commission, department or institution or any political

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subdivision of the State of Texas solely because of age; provided, [exceptionsnot here applicable1
. . . . Sec. 2. We find no statute that excepts theAdjutant 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); seealso Attorney General Opinion H-753 (1975). Retirement bei%i?iErovided by **statute** generally become available ataparticular age. See, **-,** 10U.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 linksmandatory retirement to the achievement of aparticular age. Since the relevant annuities may be earned as early as 60and are usually earned before 65,we believe your policy effectively establishes a range ofmandatory retirement ages, **most** ofwhich 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 theAdjutant General's Department that requires State employees to retire when they become eligible for two annuities, such asmilitary 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:

irstAssistant

c. ROBERT HEATH, Chairman Opinion Committee jst

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