The Honorable K. D. Hall 

County Attorney 

Refugio County 

County Courthouse 

Refugio, Texas 78377 

Dear Mr. Hall: 

Opinion No. H-963 

Re: Pension plan for 

employees of Refugio County 

Hospital. 

You advise that Refugio County elected to participate 

in the statewide Texas County and District Retirement System, 

beginning January 1, 1968, shortly after the system was 

established in 1967 by article 6228g, V.T.C.S. At that 

time, the county hospital was leased to a private agency and 

its employees were not then county employees. Subsequently, 

the county undertook the operation of the hospital (which is 

governed by the provisions of Texas Revised Civil Statutes, 

title 71, chapter 5) and all hospital personnel became 

county employees. 

The hospital employees have asked the county commissioners 

court to set up a separate pension system for them independent 

of the Texas County and District Retirement System. The 

Refugio County Commissioners Court has neither formally 

precluded hospital employees from becoming members of the 

statewide system, nor passed an order separately requiring 

them to become members of the statewide system. 

You ask: 

Can the employees of a hospital owned and 

operated by the County of Refugio form 

their own pension plan, independent of the 

Texas County and District Retirement System. . . . 

p. 3186 
The' Honorable K. D. Hall - page 2 (H-903) 

The Texas Constitution, article 16, section 67, empowers 

the Legislature to enact general laws establishing systems 

and programs of retirement and related death and disability 

benefits for public employees and officers', and it continues in 

effect those systems and programs which existed at the time the 

constitutional provision was adopted in 1975, subject to the 

power of the Legislature to change them. Subsection (c) of the 

constitutional provision states in part: 

(c) Local Retirement Systems 

(1) The legislature shall provide by 

law for: 

(A) the creation by any city or county 

of a system of benefits for its officers 

and employees: 

(B) a statewide system of benefits for 

the officers and employees of counties 

or other political subdivisions of the 

state in which counties or other political 

subdivisions may voluntarily participate . . . . 

. . . . 

(2) Benefits under these systems must be 

reasonably related to participant tenure 

and contributions. 

The Texas County and District Retirement System is a 

statewide system in which counties may voluntarily participate 

-- a system which the constitutional provision continued in 

effect. Attorney General Opinion H-604 (1975). Subsection 

l(c) of section 3 of article 6228g states that a subdivision 

which once elects to participate in the Texas County and District 

Retirement System may subsequently elect to discontinue 

enrollment of new members, but "shall never discontinue as 

to any members." 

Subsection 2 of the same statutory section governs the 

participation of employees in the statewide system. In 

pertinent part, it says: 

p. 3787 
The Honorable K. D. Hall - page 3 (H-903) 

The membership of the System shall be 

composed as follows: 

(a) All persons who are employees of a 

participating subdivision on the effective 

date of its participation in the.System shall 

become members of the System as of that date; 

provided, however, that this provision shall 

not apply to any of the following persons or 

groups of persons, to wit: 

. . . . 

(2) Employees of any county hospital which 

hospital is governed by the terms and provisions 

of Chapter 5, Title 71, Vernon's Texas Civil 

Statutes, where the commissioners court -- of the 

not included in the System, the commissioners 

court may thereafter elect to require such 

employees to become members of the System, and 

such employees shall become members of the 

System at the date fixed by the order for their 

participation; the rights and obligations of 

such employees and of the county as employer of 

such persons shall be determined as if such 

county hospital employees were employees of a 

separate subdivision. 

(b) ti person not a member of this System, 

who becomes an employee for the first time of a 

participating subdivision after the effective 

date of participation of such subdivision, shall 

become a member of the System, upon the first 

day The monthfomwlng the date such person 

becomes an employee, provided he is then under the 

age of 60 years but any such person who is then 

60 years or over shall not be eligible to become 

a member of this System. (Emphasis added). 

p. 3788 
The Honorable K. D. Hall - page 4 (H-903) 

The provis.ion referring to hospital employees in subsection 2(a) (2) of section 3 was added in 1969. The 

legislative history of this amendment makes it clear that 

the Legislature intended to permit the commissioners court 

to originally exclude hospital employees as a group from 

membership in the County and District Retirement System, 

but required affirmative action by the commissioners court 

in order to preclude such employees from membership. House 

Bill No. 1131 of the 61st Legislature as introduced would 

have excluded hospital employees from membership "unless 

the commissioners court of the county elects to require the 

employees of any such hospital to become members of the system." 

When the Senate considered the bill, it amended this provision 

with the language as it now appears in the Act, which clearly 

requires positive action in order to exclude hospital 

employees from becoming members. 

It would appear from the facts given us that the hospital 

employees automatically became members of the statewide retirement system when they became county employees, since the 

county did not originally take action to exclude them, 

nor did it subsequently discontinue the enrollment of new members 

in the system. Cf. Attorney General Opinion M-520 (1969). 

While section 3, subsection 2(a)(2) of article 6228g allows 

counties to originally exclude hospital employees from 

participation, we do not believe that it was intended to 

modify the subsection l(c) prohibition against dropping 

members from the system. Thus, if hospital employees have 

become members of the Texas County and District Retirement 

system, they must remain members. 

In 1975, in anticipation of section 67, article 16 of 

the Constitution, the Legislature enacted article 62283, 

V.T.C.S., authorizing a county to create (and to contribute 

to) a retirement, disability and death benefit system for 

its appointive officers and employees if the county voters 

approve. 

The county might elect to discontinue the enrollment 

of new county hospital employees under subsections l(c) and 

2(a)(2) of section 3 of article 622851, and create an article 

62283 local retirement system for new employees, but it may 

not discontinue membership in the statewide system of the 

p. 3789 
. . . 

. 

~. . 

.. , 

,. 

Then Honorable K. D. Hall - page 5 (H-903) 

current employees who are already members of the County and 

District Retirement System, even though the employees in 

question may desire not to participate in the system. See 

Attorney General Opinion M-520 (1969). Moreover, thoseemployees who are members of the County and. District Retirement 

System may not receive membership credit from another State 

or county retirement system for the same service. Tex . 

Const. art. 16, S 67(a) (2). 

SUMMARY 

Employees of a county hospital have 

automatically become members of the 

Texas County and District Retirement 

System when they became county employees, 

if the county was already a participant in 

the System and the county commissioners court 

took no action to exclude hospital employees 

originally from participation in the System. 

Hospital employees who have become members 

of the System must remain members, and 

cannot receive membership credit from another 

State or county retirement system for the 

same service. 

-@PROVED: 

-1 

DAVID M/ QNDALL, First Assistant 

Opinion Committee 

jwb 

P. 3790