                      AUSTIN.   TEXAS



                         December 13, 1949

Hon. B. B. Sapp                  0plnlon   NO. v-963.
Rxeautive Director
Teacher Retirement               Be: Authority of Board of
System of Texas                      Trustees of Teacher Re-
Austin, Texas                        tirement System to pro-
                                     mulgate submitted rules
                                     and regulations    for ad-
                                     ministration    of S.B.
Dear Mrs. Sapp:                      438, slat Leg.

           We refer to your letter  requesting this office
to consider rules and regulat+oF    devised for the admin-
istration  of Senate Bill Ho. 436, Acts 51st Legislature,
1949, and to determine their validity    in the light of
that law, the Teacher Retirement System Act, and the Em-
ployees Retirement Act.
          Sections   1 and 2 of Senate Bill    438,     provide:
            "Section 1. Effective       September 1, 1949,
     any person who is a member of either        the Teaoh-
     er Retirement System of Texas under the provi-
     sions of Chapter 4 0, Acts, Regular Session,
     45th Legislature,      I 1937), as amended, or the
     Fkuplogees Retirement System of Texas under the
     provisions     of Chapter 352, Acts, Regular Ses-
     sfon, 50th Legislature,        (1947), as amended,
     and if such person had also been a member of
     said System for a         rtod of two (2) years prior
     to September 1, 19r 9, and/or If any Person be-
     came a member of either .Sgstem after September
     1, 1947, but before September 1, 1949, and oon-
     tinued in such employment for a period of five
     (5) consecutive      years, then such member shall
     be entitled     to reoeive credlk and resulting
     benefits    for any and all prior service credit-
     able as prior service for emplovment under the
     provisions     of either of said Acts and the re-
     spective Boards of Trustees are hereby instruct-
     ed 'to review the prior service of the employees
     who were members on September 1, 1949, under
     either Act to permit said members to claim such
     additional     prior service as provided herein and
Hon. B. B. Sapp, page 2     (v-963)


     to include same in the prior service certifl-
     cates to be issued; OP if a prior service oer-
     tlflcate   has been issued, to adjust and effect
     an amended PPiOr SePvice certificate      after such
     additional    prior service claimed has been pro-
     peerly verified    as provided In the provisions
     of the two Retirement Acts.
           “Sec. 2.     In the event a member of one
     of said Retirement Systems shall terminate
     his employment and within five (5) years re-
     tarn to employment in a position      requiring his.
     membership in the other Retirement System,
     such member shall be entitled      to retain his
     priory service and accumulated membership ser-
     vice credited     to him under the first   System
     and th t       1 accumulated creditable    service
                    ible for joint retirement under
     %&~$            as provided herein.     Provided
                  is shall not apply to any teach&
     or Stat: employee who has withdrawn his accu-
     mulated contributions     in either system.”     (Em-
     phasis added)
           Article III,   Section     48a, Constitution   of Tex-
as, provides in part:
             “In addition to the powers given the
     ~gislature,      under Section 48 of Article   3,
     it shall have the right to levy taxes to
     provide a Retirement Fund for persons employ-
     ed in publio schools,      colleges and universi-
     ties,    supported wholly or partly by the State:
      0 . . provided no person shall be eligible       for
     a pension under this Amendmentwho has not
     taught twenty years in the State of Texasbut
     shall be entitled     to a refund of the moneys
     paid into the fund.
           It. . . and provided that the reel ients
     of such retirement fund shall not &e
     for any other pensions retirement   .funds or dl-
     Feat aid from the State, unless suah retlre-
     ment fund, contributed    by the State, is re-
     leased to the State of Texas as a condition
     to receiving   suoh other pension aid .” (Rm-
     phasis added)
           Article   XVI, Section     62a, Constitution   of
Eon. B. B. Saps, Page 3        (V-963)



Texas,   provides   in part:
            “The Legislature shall have the right to
     levy taxes to provide a Retirement Disability
     and Death Compensation Fund for the appolntive
     officers   and employees of the State; . . .
            ” . . . and provided that the reclnients
     of benefits    from said Fund shall not be eligi-
     ble for any other oenslon retirement funds or
     direct aid from the State of Texas, unless the
     Fund, the creation     of which is provided for
     herein, contributed     by the State, is releas-
     ed to the State of Texas as a condition      to re-
     ceiving such other pension aid.”       (Rmphasls
     added )
           The Constitution  provides that the recipients
of Teacher Retirement Funds shall not be eligible     for
any other pension retirement funds from the State of
Texas.   It provides llkewiae with respect to recipients
of Rmployees Retirement Funds. Both the Teacher Retire-
ment and the Employees Retirement Funds are pension re-
tirement funds of the State of Texas.     These oonstltu-
tlonal provisiona preclude,   In our opinion, the use of
both funds In the payment of a “joint” retirement pen-
slon as proposed in Senate Bill Ho. 438.
           The purpose of Senate Bill 438, as reflected
in these quoted provlslons,     la to allow persons eligible
for retirement under its provisions,      the Teacher Retire-
ment Act (Art.2922~1,   V.C 23.   as amended) and the E!m-
ployees Retirement Act (Art.&228a, as amended) to become
recipients  of retirement funds from both the Teacher Re-
tirement System and the Employees Retirement System. The
other provisions   of Senate Bill 438 are designed for the
accomplishment of the same purpose.       Under the proposed
rules submitted by you "each beneficiary      under joint re-
tirement vi11 receive monthly annuity payments from each
System. "
          The whole spirit     and purpose of Senate Bill Ro.
43% being in direct   conflict   with the quoted Constitution-
al Amendments, the Bill is unconstitutional     and for that
reason unenforceable.
             In one other respect Senate Bill 438 is uncon-
stltutlonal.     Section 4 of the Bill would allow accumula-
tion of creditable     service of both Systems (the Teacher
Hon. B. B. Sapp, page 4      (v-963)


S~ystem and the Rmployees System) for the purpose of~ar-
riving at twenty years of joint creditable       service,
thereby entitling   one to retire    under the reciprocal   re-
tirement provisions    of Senate Bill 438.    This section
violates  that part of the Constitution     concerning the
Teacher Retirement System which states that "no person
shall be eligible   for a pension under this Amendmentwho'
has not taught twenty years in the State of Texas."         De-   +3d
spite the severability     clause in Senate Bill si; we think
the Legislature   would not have passed the Bill if its
full reciprocity   benefits    could not be realized   by both
those persons covered by the Teacher Retirement law and
those covered by the Rmployees Retirement law.
           It is pertinent 'also to note that the Teacher
Retirement Amendment and the Teacher Retirement Act, Art.
2922-1, V.C.S.,  has been before the courts of this State
on one occasion.   In Woods v. Reilly,  ,147 Tex. 586, 218
S.H.2d 437 (1949), the court stated:
           "At the outset it should be stated that
     the plain intent of the ConstItutional   Amend-
     ment; and the Act giving it life,   was to pro-
     vide security  for teachers and create an in-
     centive to encourage qualified   persons to be-
     come and remain teachers in the public schools
     of Texas . . .I'
            It is obvious that the quoted language would
apply as well to the Employees, Retirement Act, Art.
6228a; v.c.9.;    that the plainintent  ~of the Employees
Retirement Constitutional    'Amendment, and the Act giv-
ing it life,   was to provide security   for State employees
covered thereby and oreate an incentive     to encourage
qualified   persons to become and remain State ernployees.~~~-+.'G
To construe Senate Bill Z!SFas constltue                        J
to defeat such plain intents and purposes of both the
Teacher and Employees Amendments and the Acts giving
them life.
          In view of our above holding, we pretermit dis-
aussion concerning the rules and regulations subml.tted
for our approval.


              Senate BillHo.438,  Aots 51st Legisla-
      ture,    1949, providing a joint retirement
         ,

     .


             Hon. B. B. Sapp, Page 5   (v-963)
_-



                 program financed by funds from both the
                 Teacher Retirement and Employees Retire-
                 ment Funds is unconstitutional   in that it
                 violates  the Teacher Retirement and Employees
                 Retirement Fund provisions and purposes of
                 Article  III, Section 48a, and Article XVI,
                 Section 62a, Constitution   of Texas.

                                                 Yours very truly,
                                             ATTORNEY
                                                    GENERALOF'TEXAS


             CEO:mw
                                                 Chester E. Ollison
                                                          Assistant


                                             APPROVRD

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                                             ATTORERYGERRRAL
