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### GENERAL. EXAS

October 14, 1969

Honorable CusMutscher Speaker ~Opinion No.&490 House of Representatives Re: State Capitol Whether State Employees Austin, Texas 78711 whoare former Leglslators can retire as elected officials under Art. Dear Sir: 6228a, V.C.S.

You have requested our opinion as to the construction of Paragraphs 3Eand J+Fof Article 6228a, Vernon's Civil Statutes, which read in part as follows: "Subsection E. "Anyperson whowas anElective State Offlclal andwhohas served not-less than eight-(81 years in the Legislature of,Texas (as such creditable service is defined in Chapter 524 Acts of the Regular Session, 58th Legislature as amended) may become amemberof the Employees Retirement System by paying into such system TwoHundred Eighty-Eight Dollars ($288) for each year of service in the Leglsiature of Texas, Provided further, any such person must make application to become amemberand pay In such sumsprior to January 1, 1970. Such application shall be madeon forms provided by the Board, and, thereupon, such person shall be entitled to all system. t;theprivileges and benefits of such

Acts of the 61st Le p. 287, 289. (Emphasis added. ., Chap. 114,

"F

. Each appointed officer or employee, as defined in this Act, whohas heretofore withdrawn his contributions and cancelled hfsaccurmzlated creditable service for retirement purposes, x, if he returns to State employment and continues as such for aperiod of five (5 consecutive years, or If an elective State,officlal, upon taking the oath of office, be entitled to

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Hon. QusMutacher, page 2 (M-490)

deposit in the Retirement System In alump sumpayment the amount withdrawn with apenalty interest of twoand one half per cent (2J$) Per annumfrom the date of withdrawal to the date of redeposit, plus any membership fees due, andhave his creditable service reinstated for retirement purooses.... The amounts to be deposited shall be determined in each case bythe Employees Retirement System and In no event shall any such person be granted retirement upon such former service credits until the amount so determined shall have been paid in full.” Acts of the 58th Leg., Chap. 524, p. 1372, 1376. (Emphasis added. ) the

_ _ Section 4Fis apart of Chapter 524, Acts of 58th Leg., 1963, page 1372. As this section existed prior to 1969, it had already madeadistinctionbetween the two classes of persons composing the membership of the Employees Retirement System. The first class Is composed of “apvolntive officers or employees”, and the second class is corn; priaed of “elected officials”

. The substance of this section, ae enacted in Its present form in 1963, required a five-year period of work on return to the system for those In the first class whoreturned to the system as anappointlve officer or employee, but waived this period a~8 to the elected officials comprising the second class of members. Section 4Fis neither applicable nor relevant to the question asked, for the reason that it speaks solely to aformer employee or official “whohas heretofore withdrawn his contributions and cancelled his accumulated creditable service..

..‘I

J3ythe 1969 amendment of Section 3E, the Leglslature provided that any former legislator with eight years past legislative service maybecome amemberof the Rmployees Retirement System as apart of the elected class by paying certain moneys into the fund. This inclusion Is reasonable so long as the former Legislator seeking to become apart of the elected class Is employed by the State of Texas at the time he elects to pay his moneyand to join the class of “elected officials” under the hnployees Retirement System. Attorney General Opinion M-413 (1969) concluded that it would violate the Constitution to allow

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this membership or to credit prior service to leglslators, except whenthe person is employed bythe State at the time he seeks to invoke the benefits of the Rmployees Retirement System.

Another limitation on the 3Eelective membership is that application to the Employees Retirement System must be made "prior to January 1, 1970"; consequently December 31, 1969, is the laet day for these applications to be madeunder the newlaw,

This inclusion by the Legislature of former members thereof whoare nowin State employment whenthey apply to be apart of the elective class is areasonable classification under Article XVI, Sec. 62, Constitution of Texas.

Wemust presume that the Legislature's classlfication is valid and reasonable. stitutional Iaw, Sec. 112. 12Tex. Jur.2d, 460, ConWecannot say that It Is discriminatory as between other classes of membership, since there are material differences In the nature of duties, responslbllitles, and service which distinguish elected officials, including former members of the Legislature, from employees and appointed officials. Thetest of reasonableness as prescribed bythe courts has been stated as follows:

....the test for determining its

reasonableness Is whether there is any basis for the classification which could have seemed reasonable to the legislature. "In order to be valid, a statutory classification must reasonably promote some proper object of public welfare or interest, must rest on real and substantial relation to the subject of the legislation, and must affect all persons or things within aparticular class, or similarly situated." 12Tex. Jur.2d 459, Constitutional Law, Sec. 111, and cases there cited."

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Hon. GusMutscher, page 4(M-490)

In view of the foregoing, it Is our opinion that the statutory provisions and requirements are non-discriminatory, reasonable, valid, and constitutional, and former members of the Legislature with the requisite eight years leglslative service are not required to comply with a five-year employment requirement upon returning to the Employees Retirement System (as doappointlve officials and employees) in order to obtain membership qualification as elected officials. SUMMARY'

Section 

### 3Eof Article 6228a, Vernon's Civil Statutes, allows one whoqualifies by reason of at least eight years past legislative service andwho is nowin State employment, to become amemberin the "elective class” of the Employees Retirement Syetem without working five consecutive years. Section 4F of Article 6228a, supra, the five-year provision, is not applicable to such members. Theprovision In Section 3Eallowing membership In the "elected class" to those employees with prior legislative service and present state employment is reasonable under Article XVI, Sec. 

### 62,Constitution of Texas.

eneral of Texas Prepared by Roger Tyler Assistant Attorney General APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman George Kelton, Co-Chairman John Hanks Sarah E. Phillips Houghton Hrownlee BobFlowers Louis G. Neumann



### -2338-Hon. GusMutscher, page 5(M-490)

MHADE F. GRIFFIN Staff Legal Advisor HAWTHORNE

PHILLIPS Executive Assistant NOLAWHITE First Assistant

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