DAN MORALES 

ATTORNEY GENERAL 

QBffice of tip Wttornep &neral 

&ate of Qexas 

August 13,1992 

Mr. Wayne Blevins 

Executive Secretary 

Opinion No. DM-154 

Teacher Retirement System of Texas 

1000 Red River Street 

Austin, Texas 78701-2698 

Re: Whether Government Code section 

824.304(c) conflicts with the federal Age 

Discrimination in Employment Act of 

1967, as amended by the Older Workers 

Benefit Protection Act of 1990, and 

related questions (RQ-371) 

Dear Mr. Blevins: 

You requested the attorney general’s opinion concerning whether Govemment Code section 824.304(c) conflicts with the federal Age Discrimination in 

Employment Act of 1967 (the “act”), Pub. L. No. 90-202, 81 Stat. 602 (1967), as 

amended by the Older Workers Benefit Protection Act, Pub. L. No. 101-433, 104 

Stat. 978 (1990), now codified at 29 U.S.C. 90 621-34. We conclude that section 

824.304(c) conflicts with the federal acts and is therefore pre-empted by federal law 

and void. 

Title 8, subtitle C of the Government Code created the Teachers Retirement 

System of Texas (IRS) to establish a system of benefits for retired teachers and to 

provide for administration and management of such a system. See Gov’t Code 

88 824.001-.701. The retirement benefits offered by the system are based on years 

of teaching service. See Gov’t Code 93 824.202-.204. If a member of the system 

becomes disabled, the member is entitled to a disability retirement annuity. Id 

5 824.302. If a disability retiree is restored to active service, the disability retirement 

annuity is discontinued and the retiree must again become a member of the 

retirement system. Id 5 824.307. However, Government Code section 824.304(c) 

states the following special provision applicable to TRS members older than 60 

years: “If a person receives a disability retirement annuity under Subsection (b) and 

the retirement begins after or continues until the person becomes 60 years old, the 

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Mr. Wayne Blevins - Page 2 (m-154) 

disability is conclusively presumed continuous for the rest of the person’s life. 

Therefore, under the present Government Code, a disabled member who cures his 

disability before the age of 60 may return to active service and earn additional years 

of service credit toward retirement; however, a disabled member who cures his 

disability after reaching the age of 60 is conchtsively presumed disabled for life, 

cannot revoke his disability, and cannot earn additional years of service credit 

toward retirement. 

In 1967 Congress passed the Age Diition in Employment Act 

(ADEA) with the express intent “to promote employment of older persons based on 

their ability rather than age [and] to prohibit arbitrary age discrimination in 

employment.” 29 USC. 8 621(b). The ADEA declares: 

It shall be unlawful for an employer 

(1) to fail or refuse to hire or to discharge any individual or 

otherwise discrimina te against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, 

because of such individual’s age; [or] 

(2) to limit, segregate, or classify his employees in any way 

which would deprive or tend to deprive any individual of 

employment opportunities or otherwise adversely affect his 

status as an employee, because of such individual’s age. 

Id. 5 623(a). The term “employer” includes-“a State or political subdivision of a 

State and any agency or instrumentality of a State or a political subdivision of a 

State.” Id. 8 630(b)(2). The act’s prohibition against discrimination applies to 

individuals at least 40 years of age and less than 70 years of age. Id. 0 631(a). 

Despite the ADRA’s broad prohibition against age di&mination, the 

Supreme Court in Public Emp@vee.s Retin?ment System of Ohio v. Befts, 492 U.S. 158 

(1989) held that the act prohibited age d isuimmation in hiring, firing, wages, and 

salary, but did not prohibit discrimination in the fumishing of tkinge benefits such as 

retirement or pension packages. Congress then passed the Older Workers Benefit 

Protection Act of 1990 with the express intent of overturn@ B&r. Pub. L No. lOl433,s 101,104 Stat. 978 (1990); see alsO S. Rep. No. 101263,101st Gong., 2d Seas. 5, 

14-19 (1990). reprinted in 1990 U.S.C.CAN. 1510, 1519-1524. The Senate 

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Mr. Wayne Blevins - Page 3 CM-154) 

Subcommittee on Labor and the Senate Special Committee on Aging endorsed the 

amendments and the overruling of Berts as follows: 

Through this legislation, Congress intends to make unmistakably 

clear that the ADEA’s purpose of eliminating arbitrary age 

dismimination in all employment includes the elimination of age 

discrimination in all forms of employee benefits. It is little 

consolation to an older worker to be protected &om 

discriminatory wage payments if an employer is free to 

discriminate based on age in the broad range of employee 

benefits that are included as an individual’s compensation, 

benefits that often are valued between one-quarter and onethird of earned wages. 

S. Rep. No. 101-263 at 16-17, rep&&d in 1990 U.S.C.C.AN. at 1521-22. The 1990 

amendments to the ADEA added the following new subsection to make it clear that 

Congress intended to prohibit d&imina tion as to fringe benefits: The term 

‘compensation, terms, conditions, or privileges of employment’ encompasses all 

employee benefits, including such benefits provided pursuant to a bona fide 

employee benefit plan.” Pub. L No. 101-433, 0 102, now codified ut 29 U.S.C. 

0 630(L). The amendments further provided that: “No.. . employee benefit plan or 

voluntary early retirement incentive plan shall excuse the failure to hire any 

individual, and no such employee benefit plan shah require or permit the 

involuntary retirement of any individual specified by [this act], because of the age of 

such individual.” Pub. L No. 101433.# 103, now co&W at 29 U.S.C. 0 623(f)(2). 

The present Government Code allows a disabled TRS member who cures his 

disability before the age of 60 to return to active service and earn additional years of 

service credit towards retirement. See Gov’t Code Q 824.307. However, pursuant to 

Government Code section 824304(c), a disabled TRS member who cures his 

disability after reaching the age of 60 is deemed disabled for life, cannot revoke his 

disability, camtot rejoin the TRS system, and uot earn additional years of service 

credit toward retirement. We conclude that denying an individual older than 60 

years old an opportunity to rejoin the retirement system, while granting this same 

opportunity to one younger than 60 years old, constitutes discrimination against an 

individual between the ages of 60 and 70 years old “with respect to his 

compensation, terms, conditions, or privileges of employment.” This violates ADEA 

section 621(b)( 1). See American Ash of Retied Persons v. Famuxs Group, 943 F2.d 

996,lOOlM (9th Cir. 1991) (pension plan provisions denying accruals of service and 

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Mr. Wayne Blevins - Page 4 (m-154) 

salary credits to employees over 65 years old violated ADEA, 29 U.S.C. 

P 623(a)( 1)). We also conclude that this disparity adversely affects the status of such 

employees older than 60 years solely because of their age in violation of section 

WW). 

Under the Supremacy Clause of the United States Constitution, article VI, 

clause 2, state law is preempted where the state law conflicts with federal law. 

English v. Geneml Electric Ca, 496 U.S. 72, 110 S.Ct. 2270, 2275 (1990). “[Tlhe 

[Supreme] Court has found pre-emption where it is impossible for a private party to 

comply with both state and federal requirements or where state law ‘stands as an 

obstacle to the accomplishment and execution of the full purposes and objectives of 

Congress.‘” Id. 110 S.Ct. at 2275. In the present case Government Code section 

824304(c) conflicts with the federal ADEA as amended; therefore, section 

824304(c) is pre-empted by the federal act and is void. See Maryland v. L.oukna 

451 U.S. 725,748 (1981) (“[A] state statute is void . . . to [the] extent that it confl& 

with [a] federal statute.“); see uko Attorney General Opinion DM49 (1991) at 7.’ 

WC bdievc that the proper procedure for tbe repeal of section S24304(c) is for the Texas 

Lc&+huc to pars a bii unconditionally and eqcssly repealing the former law. The Texas 

Conchtutionrcsc-thcpowutorcpePlskwtotheLegLLahvcin~I,redion28,whieh 

provides: ‘No poww of suspclldiag laws in this state shall be exercised except by the Lcgishue.’ If 

the Texas Legislahue ties to remove Gowmmeat Code section S24304@) from the books, the 

kgishhueshouldpassanewbiUupressIydoiogso. Tex.Const.art.III,i30. Inthemeantimeandfor 

tbc reasons previously dimsed, Gowmmcnt Code section &24304(c) is prc-emptcd by federal law 

mdisvoid 

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Mr. Wayne Blevins - Page 5 m-154) 

SUMMARY 

Texas Government Code section 824304(c) conflicts with 

the federal Age Dis crimination in Employment Act of 1967, as 

amended by the Older Workers Benefit Protection Act, codified 

at title 29 of the United States Code sections 621-34, and 

therefore section &324304(c) is preempted by the federal acts 

and is void. 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

RENEAHIcKs 

Special Assistant Attorney General 

MADE- B. JOHNSON 

Chair, Opinion Committee 

DAN MORALES 

Attorney General of Texas 

Prepared by Geoffrey Hermessey 

Assistant Attorney General 

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