August 20, 1971 

Hon. Everett L. Anachutz 

Executive Secretary 

Opinion NO. M-941 

Employeea Retirement Syatem Re: Conatltutlonallty of 

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 service not prevloualy creditable 

under the State E& 

ployees Retirement 

Dear Mr. Anschutz: Syatem. 

We quote from your letter requesting an opinion from 

this office as follows: 

“Thla office hae reviewed the provlalona of 

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 recognized aa creditable service In the Employees 

Retirement System of Texas. 

“We have carefully reviewed your prevloua 

Opinions M-95 dated July 16, 1967, and ~-830 

dated April 7, 1971. In each of these oplnlone 

you have dlacuaeed the conatltutlonal llmltatlona 

upon crediting aervlce In the various public retirement ayetema. 

'In view of your previous oplnlona, we respectfully request your offlclal opinion ae to 

the conatltutlonality of thoae provlalona of 

S.B. 216 and H.B. 862 which encompaaa type@ of 

service not previously creditable under the 

State mployeee Retirement System. Additionally, 

we request your opinion ae to whether or not a 

conflict exleta between these bllle ae they 

relate to emgloyeea and elective official.9 paid 

by countlee. 

-4589- 
. . 

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 (Employees Retirement System of Texas 

lng Subsection H providing that any contributing member of 

the S atem, upon completing the requSred number of month@ 

L5z-3-5 con rl utlng service necessary to eetablleh previous 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 Attorney perform- 

-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 statutory Texas State DepartmK 

agency or commlselon having statewide jurisdiction, the employees of which under requirement.8 of law, are members of 

the Employees Retirement System, (with certain provisos 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. Subsection E of Article 6228a. to orovlde that 

any person who waa an Elective State Official-and who hae 

served In the Lenlslature of the State of Texas and who 

haa not less thai eight yeare creditable service may 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 employed by 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, reeponslbllltlee and ter:rs 

of emoloyment were eatabllehed by the State or anv a~ncv 

or department of the State but hle compensation wae p,i.cl 

by the county unleae such service was 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 almultaneouely credited by another Retirement 

System of the State. 

The provisions of the Constitution and statutes 

-4590- 
Hon. Everett L. Anechutz, Page 3 (M-941) 

applicable to the foregoing Acts are listed as follows: 

In 1936 an amendment designated as Section 48a was 

added to Article III of the Constitution, which I@ now 

commonly called the Teachers Retirement Amendment. The 

Legislature gave effect to this amendment by enacting leglelatlon now reflected In Article 2922-1, Vernon's Civil 

Statutes, which defines those who 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 Retirement Disability and Death Compensation Fund 

for the appolntlve Officers and employees of the State, and, 

In Subeectlon (b) thereof, giving counties the right t 

provlde for and administer a Retirement, Dleablllty an: 

Death Compensation Fund for the appolntlve officers and 

employees of the County. This Amendment provided for 

matching contributions by the State to the State tiployees 

Fund, and matching contributions by each participating 

county to the Fund for Its appolntlve officers and employees, 

with the proviso that the recipient of benefits from each 

such Fund should not 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 Amendment was made 

effective by a legislative act which as amended, now 

appears as Article 6228a. This statute defines an employee 

as "any regularly appointed officer or employee In a department of the State," and excludes "any person who Is covered 

by the Teacher Retirement System of the State of Texas or 

any retirement system supported with State Funds other than 

the Texas Employees Retirement System." 

In 1949, Article 622&, Vernon's Civil Statutes, was 

enacted providing 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 Legislature and the adopters 

-4591- 
Hon. Everett L. Anschutz, Page 4 (M-941) 

of the Amendment that the retirement ayatema were created 

to keep teacher6 In their field and atate employees on the 

job In their field. The Court reiterated the principle 

that the controlling guide In giving effect to the conetltutlonal amendment was the Intention of the makers and 

adoptera to prevent encroachment or 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 1954 Article XVI of the Constitution waa amended 

by the aadltlon of Section 63,whlch provided mutual credit 

?or prior service In either of such Syeteme, the very thing 

the Farrar decision had abrogated In 1951 . 

This office rendered lta Opinion No. M-95 (1967), 

and No. M-830 (1971), denying previous legislative service 

and service a8 a county judge, or service aa a judge of a 

Court of Domestic Relations or a Juvenile Court as creditable 

service under the Judicial Retirement Act. This Involved 

conatructlon of judicial retirement under Section la of 

Article V of the Constitution of Texan, which le not here 

Involved. Consequently, these opinion8 are dlstlngulahable 

from the question now poeed regardlng the conatructlon of 

Article XVI, 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 thereof material to thlr Inquiry are 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 olarrlilcatlonr 0T ofrlcero and 

employees oi thle rtate al, It deem6 advlrable. 

me Isglnlature may aleo Include oirlcers an6 

employeea of Judicial dl8trlcte of the state 

who are or have been compensated In whole or 

In part directly or Indirectly by the state, 

-4592- 
Hon. Everett L. Anschutz, Page 5 (M-941) 

and may make such other reasonable lncluslons, exclusions, or classlflcatlon of 

officers and employees of judicial dletrlcte 

of this state as It deems advisable. Person@ 

participating In a retirement system created 

pursuant to Section l-a of Article V 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 Constitution shall not be 

eligible to participate In the Fund authorized 

In this subsection, except a6 otherwise provided herein. The amount contributed by 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 compensation paid 

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 Rmployeea Retirement System. We find no 

constitutional prohibition against permitting the employees 

to be granted such credit In the Employees Ret'rement System, 

and we note that the Constitution above quoted authorizes 

the Leglelature to enact laws pertaining to privileges and 

benefits of the System. In lnterpretlng the Constitution, 

we are required to give a liberal construction to carry out 

-4593- 
Hon. Everett L. Anschutz, Page 6 (M-941) 

the beneficent purpoees of retirement and to avoid a narrow 

or technical construction In favor of an equitable and fair 

lS;Eer;Ftatlon. 12 Tex. Jur.2d 364, Constitutional Law, 

. . 

We will consider each type of service In sequence 

in the order they appear in the questioned Bills, beginning 

with Senate Bill 216. 

SERVICES AS A CRIMINAL DISTRICT ATTORNEY OR 

COUNTY A&RNEY PERFORMINC DUTIES OF DISTRICT ATTORNEY. 

Both of these named officers may be said to be 

indirectly compensated by the State even though they are 

paid a salary by the county, because of the provisions of 

Section 6(a) of Article 3912e, Vernon’s Civil Statutea, 

relating to apportionment of State funds appropriated for 

counties wherein the officials are paid on a salary basis. 

The services rendered by such officers to the State are 

Identical to those performed by District Attorneys paid 

entirely by 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 Imposed by the 

Farrar declelon violated by the giving of such rrl IIt for 

EFlTe. It la in no way antagonistic to the :i,,,nant 

purpose of the System expressed as being to encourage 

seasoned and experienced officers to remain fit their 

posta, I.e., to continue In the service of the State doing 

the same general type of work. No questlon of a transfer 

of funds from one of such systems to the other 1s raised 

by the two Bills now before us. Both Bills speclflcally 

provide for the credltlng of such prior service only in 

cases where such service Is not being credited to another 

retirement 8yatem. 

In view of the foregoing, we believe the Legislature, 

acting within thr rcope of the reasonable discretionary pow-r 

given It by Section 62(a) of Article XVI of our Constitution 

to make such reasonable Inclusiona, exclualons or classlflcatlons of officers and employees of 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 contributing member6 of the State tiployees Retirement 

System. 

-4594- 
Hon. Everett L. Anschutz, Page 7 (M-941) 

2. SERVICE AS 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 connoting duration, 

tenure and exercise by the Individual of a part of the 

sovereignty of the State of Texas. 

On the basis of this definition, ,lt 1s our opinion 

that those Individuals who have served as State Board members 

are officers as that term Is used in Section AA of Article 

6228a and are consequently entitled to receive credit under 

the provisions of Subsection "H2", Section 4, Article 6228a 

for such service to the length of service required for retirement under the provisions of the Employees Retirement 

System of Texas. 

JUDICIAL SERVICE AS 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 Constitution of Texas, 

as last amended In 1965, provides, In part, as follows: 

"Subject to the further provisions of 

this Section, the Legislature shall provide 

for the retirement and compensation of 

Justices and judges of the Appellate Courts 

and District and Criminal District Courts 

on account of length of service, age and 

disability, and for their reassignment to 

active duty where and when needed." 

Pursuant to this constitutional amendment, Article 622813, 

Vernon's Civil Statutes (Judicial Retirement System) was 

enacted which In Section 1 (b) of the Act deflnee "Judge" 

and "Judges" to 'Include all 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 justice of a district court, criminal 

district court, court of civil appeals, court of criminal 

appeals or supreme court of this State to be credited for 

retirement purposes to the length @f service of a person 

participating In the State Employees Retirement System 

-4595- 
Hon. Everett L. Anschutz, Page 8 (M-941) 

operating by authority of Article XVI, Section 62(a) of the 

Constitution of Texas, and Article 6228a, (Employees Retlrement System of Texas) provided that.'auch person la not 

almultaneoualy receiving credit In another retirement 

system. Any present participant or member of the retlrement system created pursuant to Section l-a of Article V 

of the Constitution Is not eligible to participate In the 

State Employees Retirement Fund. This constitutional and 

statutory prohibition, however, la directed against one who 

la still partlolpatln~ In or who la a present member of the 

Judxcial Retirement System, and does not prevent one who la 

now a member of the State hployeea Retirement Fund from 

utlllzlng his previous service as a judge, justice or commlaaloner as a credit for retirement purposes under the 

State B~~plogeea Retirement System, provided that he has 

resigned and withdrawn from the Judicial Retirement System 

and is a non-participant therein, as a member retiree, or 

oraaentlu related to it. The Constitutional prohibition 

reaches only participants; it does not extend-to a 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 constitutional amendment had a valid purpose In amending 

the existing Article. The language used must be given Its 

ordinary meaning. 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 ordinary meaning. 

Such an Interpretation would strain the credlblllty as the 

amendment only prohibits present and not past participation 

In the Judicial Retirement System. 

4. A PERSON HAVINO BEEN AN ELECTIVE STATE OFFICIAL 

ANDHAVINGSERVEDINTHE UWISLATUREANDHAVINQ NOT LESS THAN 

8 YEARS CREDITABLE SERVICE MAYBECOMEA MEMBER OF EMPLOYEES 

RtiIRF%ENT SYSTEM PROVIDED HE 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 

conflict with the terms of Senate Bill 216. The paramount 

-4596- 
Hon. Everett L. Anachutz, Page 9 (M-941) 

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 experienced personnel and to Induce the continued service of experienced 

personnel to the State. 

This office, In Attorney General Opinion No. M-450 

(1969) upheld the constitutionality of Article 6228a, Vernon's 

Civil Statutes, as amended, In allowing to state employees 

under the State Retirement System credit time for their 

military service. In that opinion this office observed that 

It served a beneficent and useful governmental function In 

stimulating or inducing continued public service. We see 

no difference In principle In permitting state employees 

such credit for prior service with the state In other capacities, which Is really all the bills under consideration seek 

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 applicable here for the reason thamLegislature 

was there attempting under Article 6228~ to provide for a 

transfer of funds from the teachers retirement fund and 

vice-versa. This Is distinguishable from the provisions for 

permitting prior 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 classifications of the members 

of the Employees Retirement System. 

Consequently we do not believe that the Farrar declslon, la a controlling factor In the determinationthe 

questions presented here. The underlying rationale of that 

decision Is merely a condemnation of 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 previously demonstrated, 

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 credited by another retirement system. P 

further coaent factor dispelling the Influence of the 

Farrar decision upon the question? under consideration 1s 

fhatslnce Farrar, Article XVI, Section 62 of the Constltutlon of T-as now been amended so as to allow 

-459?- 
Hon. Everett L. Anschutz, Page 10 (M-941) 

ml-ffey t of the criglnal dominant purposes. Any resulting 

o the retirement fund ma] be made up by apprOpriate 

legislative measures, Including the levy of taxes. The 

Legislature has been granted this power likewise by the Constitution, as shown. 

We have concluded that, following the well settled 

Canons of statutcry construction, we must resolve any doubt 

In favor of constitutionality and presume a constitutional 

Intent in the legislative act. 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 

(Employees Retirement 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 

subsection J Is constitutional. 

The 1968 Amendment of Article XVI, 

Section 62, Texas Constitution, allows certain prior services as creditable service 

under the Employees Retirement System when 

the Legislature so provides. 

No conflict appears to exist between 

these Bills as they relate to employees 

and elective officials pa$j by Counties. 

Yp’urs very jiruly, 

Prepared by Kerns Taylor 

Aaalatant Attorney Oeneral 

-4598- 
. . * 

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 

Executive Assistant 

NOLA WHITE 

First Assistant 

-4599-