. . 

GENERAL. 

EXAS 

October 14, 1969 

Honorable Cus Mutscher 

Speaker 

~Opinion No.&490 

House of Representatives Re: 

State Capitol 

Whether State Employees 

Austin, Texas 78711 

who are 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 3E and J+F of Article 6228a, Vernon's Civil 

Statutes, which read in part as follows: 

"Subsection E. 

"Any person who was an Elective State Offlclal 

and who has 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 a member of the Employees 

Retirement System by paying into such system 

Two Hundred Eighty-Eight Dollars ($288) for 

each year of service in the Leglsiature of Texas, 

Provided further, any such person must make 

application to become a member and pay In such 

sums prior to January 1, 1970. Such application 

shall be made on forms provided by the Board, 

and, thereupon, such person shall be entitled 

to all 

system. 

t;the privileges 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 Each appointed officer or employee, as defined in this Act, who has heretofore withdrawn 

his contributions and cancelled hfsaccurmzlated 

creditable service for retirement purposes, x, 

if he returns to State employment and continues 

as such for a period 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. Qus Mutacher, page 2 (M-490) 

deposit in the Retirement System In a lump 

sum payment the amount withdrawn with a penalty interest of two and one half per cent 

(2J$) P er annum from the date of withdrawal 

to the date of redeposit, plus any membership 

fees due, and have his creditable service reinstated for retirement purooses.... The 

amounts to be deposited shall be determined 

in each case by the 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 4F is a part of Chapter 524, Acts of 

58th Leg., 1963, page 1372. As this section existed prior 

to 1969, it had already made a distinctionbetween 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 who returned to the system as an appointlve officer or employee, but waived this period a~8 

to the elected officials comprising the second class of 

members. Section 4F is neither applicable nor relevant 

to the question asked, for the reason that it speaks solely 

to a former employee or official “who has heretofore withdrawn his contributions and cancelled his accumulated creditable service.. . .‘I 

J3y the 1969 amendment of Section 3E, the Leglslature provided that any former legislator with eight years 

past legislative service may become a member of the Rmployees Retirement System as a part of the elected class by 

paying certain moneys into the fund. This inclusion Is 

reasonable so long as the former Legislator seeking to become a part of the elected class Is employed by the State 

of Texas at the time he elects to pay his money and 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 

- 2336 - 
Hon. Gus Mutscher, page 3 (M-490) 

this membership or to credit prior service to leglslators, except when the person is employed by the State 

at the time he seeks to invoke the benefits of the Rmployees Retirement System. 

Another limitation on the 3E elective 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 made under the new law, 

This inclusion by the Legislature of former members thereof who are now in State employment when they 

apply to be a part of the elective class is a reasonable 

classification under Article XVI, Sec. 62, Constitution 

of Texas. 

We must presume that the Legislature's classlfication is valid and reasonable. 

stitutional Iaw, Sec. 112. 

12 Tex. Jur.2d, 460, ConWe cannot 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. The test of reasonableness as prescribed by the 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 

a particular class, or similarly 

situated." 12 Tex. Jur.2d 459, Constitutional Law, Sec. 111, and cases 

there cited." 

- 2337- 
. 

Hon. Gus Mutscher, 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 do appointlve officials and employees) 

in order to obtain membership qualification as elected officials. 

SUMMARY' 

Section 3E of Article 6228a, Vernon's Civil 

Statutes, allows one who qualifies by reason 

of at least eight years past legislative 

service and who is now in State employment, 

to become a member in 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. 

The provision In Section 3E allowing 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: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Co-Chairman 

John Hanks 

Sarah E. Phillips 

Houghton Hrownlee 

Bob Flowers 

Louis G. Neumann 

-2338- 
Hon. Gus Mutscher, page 5(M-490) 

MHADE F. GRIFFIN 

Staff Legal Advisor 

HAWTHORNE PHILLIPS 

Executive Assistant 

NOLA WHITE 

First Assistant 

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