August20,1971

Hon. Everett L. Anachutz Executive Secretary Opinion NO. M-941
Employeea Retirement Syatem Re: Conatltutlonalltyof of Texae S. B. 216 and H. B. Capitol Station 862, Acta 62nd Leg., Austin, Texaa 78711 R. S., 1971, wherein they encompass typea of servicenot prevloualy creditable under the State E& ployees Retirement Dear Mr. Anschutz: Syatem.

We quote from your letter requestingan opinion from this office as follows:

“Thlaoffice hae reviewed the provlalonaof S.B. 216 and H.B. 862, Acts of the 62nd Leglelature, Regular Seaelon, 1971. Each of theee Act@ authorizes credit for service not prevloualy recognizedaa creditable service In the Employees Retirement System of Texas.

“We have carefully reviewedyour prevloua OpinionsM-95 dated July 16, 1967, and ~-830 dated April 7, 1971. In each of these oplnlone you have dlacuaeed the conatltutlonal llmltatlona upon creditingaervlce In the variouspublic retirement ayetema.

'Inview of your previous oplnlona,we respectfullyrequestyour offlclal opinion ae to the conatltutlonalityof thoae provlalona of S.B. 216 and H.B. 862 which encompaaa type@ of servicenot previously creditableunder the State mployeee Retirement System. Additionally,
we requestyour opinion ae to whether or not a conflictexleta between these bllle ae they relate to emgloyeeaand elective official.9 paid by countlee.

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Hon. Everett L. Anschutz, Page 2 (M-941)

Section 1 of Senate Bill 216 (Acts 62nd Le 1971, ch. 355, p. 1331) amends Sec. 4, Article 622 Civil Statutes (EmployeesRetirement System of Texas lng SubsectionH providing that any contributingmember of the S atem, upon completing the requSrednumber of month@ L5z-3-5 con rl utlng servicenecessary to eetabllehprevious aervice, as provided for In the Act establishing such Em lo ees Retirement Syetem, shall be eligible to claim credl * f llowlng eervlce: 1. Service In the State ofrexae a8 a C~lmlnal Dm Attorney or as a County Attorneyperform- -l th dtl f Dletrlct Attorney, upon the payment of c%alz c&t~?b~tlke, penalties and fees required. 2. Service as a Board Member of a statutoryTexas State DepartmK agency or commlselonhaving statewide jurisdiction,the employees of which under requirement.8 of law, are members of the Employees Retirement System, (with certainprovisos not pertlnent~to thie inquiry),and 3; Judicial service a@ a commlssloner i7rlmlnal

Dl~~r~~u~~.~o~f~~v~~~~~~~~l~~u~~~rt of Criminal Appeals, or Supreme Court of this'Stat&.

Section 2 of eald Senate Bill 216 further amend@ Section 3. SubsectionE of Article 6228a. to orovlde that any personwho waa an Elective State Official-andwho hae served In the Lenlslatureof the State of Texas and who haa not less thai eight yeare creditable servicemay become a member of the Employees Retirement Syetem by paying certain 8ums of money Into euch system,provided that at the time the pereon electe to become a member, that pereon le employedby the State of Texaa.

Section 1 of House Bill 862 (Acts 62nd Leg. R.S. 1971),aleo amends Section 4, Article 6228a, V.C.S., (Emoloseee Retirement System of Texas) bs addlnn a new SubHectlon J allowing a-member of the'Sy&em (1T to claim creditable service of employment by the State In any position In which hle duties, reeponslbllltleeand ter:rs of emoloymentwere eatabllehedby the State or anv a~ncv or department of the State but hle compensationwae p,i.cl by the county unleae such servicewas elmult .-., ~~. ..- aneous;y credited to a;other retirement esstem or oroEram of this State, and, (2), that a member may claim 'au& services during which he waa a countyattorney unless such eervlce is or wae almultaneouelycreditedby another Retirement System of the State.

The provisions of the Constitutionand statutes

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applicable to the foregoingActs are listed as follows:

In 1936 an amendmentdesignated as Section 48a was added to Article III of the Constitution,which I@ now commonly called the Teachers RetirementAmendment. The Legislaturegave effect to this amendment by enacting leglelatlon now reflected In Article 2922-1,Vernon's Civil Statutes,which defines thosewho are entitled to the benefits of the Teachers Retirement System.

Ten yeare later, In 1946, an Amendment was adopted which la Section 62 of Article XVI of the Texas Constitution, authorizing the legislature, In Subsection (a) thereof, to provide a RetirementDisability and Death CompensationFund for the appolntlveOfficers and employees of the State, and, In Subeectlon (b) thereof, giving counties the right t provlde for and administer a Retirement,Dleabllltyan: Death CompensationFund for the appolntlve officers and employees of the County. This Amendmentprovided for matching contributionsby the State to the State tiployees Fund, and matching contributionsby each participating county to the Fund for Its appolntlve officers and employees, with the proviso that the recipient of benefits from each such Fund shouldnot be eligible for any other pension retirement funds unless the Fund so provided In the Amendment Is released to the State of Texas as a condition to receiving such other pension aid. This Amendmentwas made effective by a legislativeact which as amended, now appears as Article 6228a. This statute defines an employee
as "anyregularlyappointed officer or employee In a department of the State," and excludes "anyperson who Is covered by the Teacher Retirement System of the State of Texas or any retirement system supportedwith State Funds other than the Texas Employees Retirement System."

In 1949,Article 622&, Vernon's Civil Statutes,was enactedproviding for joint creditable service between the Teachers Retirement System and the State Employee@ Retlrement Syatem. This statute gave rise to the laweult culmlnatlng In the decision of the Supreme Court of Texas in Farrar
v. Board of Trustees, of Emp. Retirement System of Texas,

‘150 Tex. 3'(2 243 S W 2d bt)tl [lgbl holding, In part, that the provlslo~s In &Ii Article 622 c for tranefer of funds from the Teachers Retirement Fund to the State Employees Retirement Fund, and vice versa, for eventual dlebureement to the members of such Funds concerned,wae unconstitutional,
aa It was the Intent of both the Legislatureand the adopters

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of the Amendment that the retirement ayatemawere created to keep teacher6 In their field and atate employees on the job In their field. The Court reiterated the principle that the controllingguide In giving effect to the conetltutlonal amendmentwas the Intention of the makers and adoptera to prevent encroachmentor the merging or blending of one retirement system upon another. The Court thue held the ayateme should be kept separate In thle reaper %... until the Conetltutlon la amended to permit It ”

.

In 1954Article XVI of the Constitutionwaa amended by the aadltlon of Section 63,whlch provided mutual credit ?or prior service In either of such Syeteme, the very thing the Farrar decisionhad abrogated In 1951

.

This office rendered lta OpinionNo. M-95 (1967), and No. M-830 (1971),denying previous legislativeservice and service a8 a county judge, or service aa a judge of a Court of Domestic Relations or a Juvenile Court as creditable serviceunder the Judicial RetirementAct. This Involved conatructlonof judicialretirementunder Section la of ArticleV of the Constitutionof Texan, which le not here Involved. Consequently,these opinion8 are dlstlngulahable from the questionnow poeed regardlng the conatructlonof ArticleXVI,Section 62 of the Texas Constitution,which

Again, Article XVI, Section 62, wan further amended In 1958, 1966 and 1968, and now appear6 an follows, lnaofar
ae the parts thereofmaterial to thlr Inquiryare concerned:

“Sec.62. (a) The Legislature#hall have the authority to levy taxer to provide a State Retirement,M~ablllty and Death Compenratlon Fund for the offloera and employeea of the state, and may make ruch rearonable‘ln~lualonr,exclurionr, or olarrlilcatlonr0T ofrlcero and employeesoi thle rtate al, It deem6 advlrable.
me Isglnlaturemay aleo Include oirlcers an6 employeea of Judicialdl8trlcte of the state who are or have been compensated In whole or In part directly or Indirectly by the state,

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and may make such other reasonable lncluslons, exclusions,or classlflcatlonof officers and employees of judicialdletrlcte of this state as It deems advisable. Person@ participating In a retirement system created pursuant to Section l-a of ArticleV f this Constitution shall not be eligible to'partlcl ate In the Fund authorized In this subzz%mzEf persons partlclpati ment &tern crea,ted oursuant to In a retlreizctlon 48-a of Article III of this Conetltutlon@hall not be eiigl'ole

to participate In the Fund authorized In this eubsection except as permitted by Section 63 of Article XYT of ~thls'Constltutlon.Provided, however, any officer or employee of a county as provided for In Article XKS, Section 62, Subsection (b) of this Constitutionshall not be eligible to participate In the Fund authorized In this subsection,except a6 otherwiseprovided herein. The amount contributedby the state to such Fund shall equal the amount paid for the same purpose from the Income of each such person, and shali not exceed at any time six per centum (6%) of the compensationpaid to each such person by the state.

Y&r first Inquiry concerns the Conetltutlonallty of the provisions of Senate Bill 216 and Houee Bill 862 which encompass types of service not prevlouely creditable under the State RmployeeaRetirement System. We find no constitutionalprohibitionagainst permitting the employees to be granted such credit In the EmployeesRet'rement System, and we note that the Constitutionabove quoted authorizes the Leglelature to enact laws pertaining to privileges and benefits of the System. In lnterpretlngthe Constitution,
we are required to give a liberal construction to carry out

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the beneficentpurpoees of retirementand to avoid a narrow or technical constructionIn favor of an equitableand fair lS;Eer;Ftatlon. 12 Tex. Jur.2d 364, ConstitutionalLaw,

. .
We will consider each type of service In sequence in the order they appear in the questionedBills, beginning with Senate Bill 216.

SERVICESAS A CRIMINALDISTRICTATTORNEY OR COUNTYA&RNEY PERFORMINCDUTIES OF DISTRICT ATTORNEY.

Both of thesenamed officers may be said to be indirectlycompensatedby the State even though they are paid a salary by the county, because of the provisionsof Section 6(a) of Article 3912e, Vernon’s Civil Statutea, relating to apportionmentof State funds appropriated for countieswherein the officialsare paid on a salary basis. The services renderedby such officers to the State are Identical to those performedby District Attorneys paid entirelyby the State from the Oeneral Revenue Fund and who are classified as members of the State Employee8 Retirement System by Section 3.B l.,Vernon’s Civil Statutes. In no sense are the llmitatlonr Imposedby the Farrar declelon violatedby the giving of such rrlIItfor EFlTe. It la in no way antagonistic to the :i,,,nant purpose of the System expressedas being to encourage seasonedand experiencedofficers to remain fittheir posta, I.e., to continue In the service of the State doing the same general type of work. No questlonof a transfer of funds from one of such systems to the other 1s raised by the two Billsnow before us. Both Bills speclflcally provide for the credltlngof such prior serviceonly in
cases where such service Is not being creditedto another retirement 8yatem.

In view of the foregoing,we believe the Legislature, acting within thr rcope of the reasonablediscretionarypow-r given It by Section 62(a) of Article XVI of our Constitution to make such reasonable Inclusiona,exclualonsor classlflcatlons of officersand employeesof this State aa It deems advisable, wan fully empowered to authorlae such previous aervloe to the State to be aooredlted to the retlrement time of contributingmember6 of the State tiployeesRetirement System.

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2. SERVICEAS A STATE HOARD MEMBER, ETC.
Attorney Qeneral's Opinion M-470 (1969)construed the word 'officers"as used in Article 6228a, Vernon's Civil Statutes, to be deemed a word connotingduration, tenure and exercise by the Individual of a part of the sovereigntyof the State of Texas.

On the basis of this definition, ,lt1s our opinion that those Individualswho have served as State Board members
are officers as that term Is used in Section AA of Article 6228a and are consequentlyentitled to receive credit under the provisions of Subsection "H2",Section 4, Article 6228a for such service to the length of service required for retirementunder the provisions of the Employees Retirement System of Texas.

JUDICIAL SERVICEAS COMMISSIONER JUDGE OR JUSTICE ?F A DISTRICT COURT WUUNAL DISTRICT COW&C COURT OF CIVIL APPEALS, COURT OF i%YINAL APPEALS, OR SUPR&F COURT OF THIS STATE.

Article

V, Section l-a of the Constitutionof Texas,
as last amended In 1965,provides, In part, as follows:

"Subjectto the furtherprovisions of this Section, the Legislature shall provide for the retirementand compensationof Justices and judges of the Appellate Courts and District and CriminalDistrict Courts
on account of length of service,age and disability,and for their reassignment to active duty where and when needed."

Pursuant to this constitutionalamendment,Article 622813, Vernon's Civil Statutes (JudicialRetirement System) was enactedwhich In Section 1 (b) of the Act deflnee "Judge" and "Judges"to 'Includeall Commissioners,Judges and Justices of the Appellate Courts, Judges of District Courts, and Criminal District Court@, and none others." The addition of Subsection "H3" to Section 4 of Article 6228a, Vernon's Civil Statutes,has the effect of allowing service as a commlssloner, jud-;e

or justiceof a district court, criminal district court, court of civil appeals, court of criminal appeals or supreme court of this State to be credited for retirementpurposes to the length @f service of a person participating In the State Employees Retirement System
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operating by authority of Article XVI, Section 62(a) of the Constitutionof Texas, and Article6228a, (EmployeesRetlrement System of Texas) provided that.'auch person la not almultaneoualyreceiving credit In another retirement system. Any present participantor member of the retlrement system createdpursuant to Section l-a of ArticleV of the Constitution Is not eligible to participate In the State EmployeesRetirementFund. This constitutionaland statutoryprohibition,however, la directed against one who la still partlolpatln~ In or who la a presentmember of the Judxcial Retirement System, and does not prevent one who la
now a member of the State hployeea Retirement Fund from utlllzlnghis previous service as a judge, justiceor commlaaloner as a credit for retirementpurposes under the State B~~plogeea

Retirement System, provided that he has resigned and withdrawn from the Judicial Retirement System and is a non-participanttherein, as a member retiree, or oraaentlu related to it. The Constitutionalprohibition reaches only participants; it does not extend-toa member of the State hployeea Retirement fund who becomes a nonparticipant In any other state retirement fund.

It must be assumed that the makers and adopters of the constitutionalamendmenthad a valid purpose In amending the existingArticle. The languageused must be given Its ordinarymeaning. To hold that Subsection “H3” la unconatltutlonal, It would be necessary to find that neither the makers or adopters of Article XVI, Section 62, Intended that words used were to have their normal and ordinarymeaning. Such an Interpretationwould strain the credlbllltyas the amendment only prohibitspresent and not pastparticipation In the JudicialRetirement System.

4. A PERSONHAVINO BEEN AN ELECTIVE STATE OFFICIAL ANDHAVINGSERVEDINTHE UWISLATUREANDHAVINQ NOT LESS THAN 8 YEARS CREDITABLE SERVICEMAYBECOMEA MEMBER OF EMPLOYEES RtiIRF%ENT SYSTEM PROVIDEDHE IS THEN EMPLOYED BY THE STATE AND MAKE3 REQUIRED PAYMWTS INTO THE PVND FOR EACH YEAR OF CREDITABLE SERVICE.

This la an amendment of Section 3.E of Article 6228a, with very l.lttle

ohange. We see nothing Conatltutlonally objeotlonable In this enaotment.

The above reasoning Is applloable to House Bill 862 and we find It to be oonatltutlonal. This Bill la not In conflictwith the terms of Senate Bill 216. The paramount

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purpose appearing In each bill Is to carry out the Intent of Article XVI, Section 62 of the Texas Constitution,as amended and provide the State with more experiencedpersonnel and to Induce the continued service of experienced personnel to the State.

This office, In Attorney General Opinion No. M-450 (1969)upheld the constitutionalityof Article 6228a, Vernon's Civil Statutes,as amended, In allowing to state employees under the State RetirementSystem credit time for their military service. In that opinion this office observed that It served a beneficentand useful governmental function In stimulatingor inducing continuedpublic service. We see no difference In principle In permitting state employees such credit for prior servicewith the state In other capacities, which Isreally all the bills under considerationseek to accomplish. There Is no blending of retirement systems
or transfer of funds Involved. Nor are such state employees allowed to participate In two different retirement systems simultaneously,which la forbidden. The Farrar case, supra, Is not applicablehere for the reason thamLegislature
was there attemptingunder Article 6228~ to provide for a transferof funds from the teachers retirement fund and vice-versa. This Is distinguishablefrom the provisions for permittingprior state service as a measure of benefits In the Rnployees Retirement System. The Constitution,Section 2(a), Article XVI, now expressly authorizes the Legislature to enact laws pertaining to rights, prlvllegea,benefits, lnclualons, exclusions,or classificationsof the members of the Employees Retirement System.

Consequentlywe do not believe that the Farrar declslon, la a controlling factor In the determinationthe questionspresented here. The underlying rationale of that decision Is merely a condemnationof the transfer of funas from one system to another and the basing of retirement benefits under a system In part on services rendered in another and unrelated capacity. As previouslydemonstrated, neither of these objectionable features appear in the Bills under dlacusslon. No enforcement,blending or encroachment of one system upon another Is allowable, as each Bill expressly forbids the granting of such credit for any eervice that la creditedby another retirement system. P further coaent factordispelling the Influenceof the Farrardecisionupon the question?under consideration 1s fhatslnce Farrar, Article XVI, Section 62 of the Constltutlon of T-as now been amended so as to allow

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t of the criglnaldominant purposes. Any resulting ml-ffey
o the retirement fundma] bemade up by apprOpriate legislativemeasures, Including the levy of taxes. The Legislaturehas been granted this power likewiseby the Constitution, as shown.

We have concluded that, following the well settled Canons of statutcry construction,we must resolveany doubt In favor of constitutionalityand presume a constitutional Intent in the legislativeact. Watts v. Mann, 187 S.W.2d 917 (Tex.Civ.App.1945, error re?.); State v. Shoppers

380 S W 2d 107 (Tex.Sup.1964); 53 Tex.Jur.2d %$$%E%&s, sec;i& 126.

SUMMARY

Senate Bill 216, Acts 62nd Leg., R.S. 1971, Ch. 355, p. 1331, amending Section 4, Article 6228a, Vernon's Civil Statutes (EmployeesRetirement System of Texas) Is constitutional.

House Bill 862, Acts 62nd Leg,, R.S. 1971, amending Section 4, Article 6228a, Vernon's Civil Statutes,by adding a new subsectionJ Is constitutional.

The 1968 Amendment of Article XVI, Section 62, Texas Constitution,allows certain prior services as creditable service under the Employees RetirementSystem when the Legislatureso provides.

No conflictappears to exist between these Bills as they relate to employees and elective officials pa$j by Counties.

Yp’urs

very jiruly,

Preparedby Kerns Taylor Aaalatant Attorney Oeneral

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Hon. Everett L. Anechutz, Page 11 (M-941)

APPROVED: OPINION COMMITTEE

W. E. Allen, Acting Chairman

Robert C. Flowers Arthur Sandlln Roger Tyler Jay Floyd Wardlow Lane

MFADP F. GRIFFIN Staff Legal Assistant

ALFRED WALKFR ExecutiveAssistant

NOLA WHITE First Assistant

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