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                           EATTORNEY               GENERAL
                                OFTEXAS
                                AUSTIN.    TEXAS   78711
CRAWFO-       C. MARTEN

                                      June 9', 1969


      Hon. B. D. DeBerry, Jr
      Chairman, Board of Trustees
      Bmployees Retirement System of Texas
      Capitol Station
      Austin, Texas 78711              Opinion No. M-413
                                              Re: Constitutionality of S.B.
                                                  418, Section 4, Sub-
      Dear Mr. DeBerry:                           section E, 61st Legislature
          Recently you requested an opinion on the constitutionality
      of S.B. 418, Section 4, Subsection E, 61st Legislature reading
      as follows:
              "Any person who was an Elective State Of-
              ficial and who has served not less than
              eight 8) years in the Legislature of
              Texas tas such creditable service is
              defined in Chapter 524, Acts of the
              Regular Session 58th Legislature as
              amended) may become a member of the Bm-
              ployees Retirement System by paying in-
              to such s stem Two Hundred Eighty-eight
              Dollars (i 288) for each year of service
              in the Legislature of Texas. Provided
              further, any such person must make appli-
              cation to become a member and pay in
              such sums prior to January 1, 1970.
              Such application shall be made on forms
              provided by the Board, and thereupon,
              such person,shall be entitled to all the
              privileges&d    benefits of such system."
          A consideration of the constitutionality of the above pro-
      vision involves two Articles of the Constitution of the State
      of Texas. Article I, Section 16, thereof states:
                  "NO bill of attainder, ex post facto law,
                  retroactive law, or any law impairing
                  the obligation of contracts shall be made."


                                          -2056-
Hon. H. D. DeBerry, Jr., Page 2      (M-413)



    Article III, Section 44 of the Constitution providesz
       "The Legislature shall provide by law
       for the compensation of all officers,
       servants, agents and public contractors,
       not provided for in this Constitution,
       but shall not grant extra compensation
       to any officer, agent, servant or public
       contractors, after such public service
       shall have been performed or contract
       entered into, for the performance of the
       same;.nor grant, by appropriation or other-
       wise, any amount of money out of the
       Treasury of the State, to any individual,
       on a claim, real or pretended, when the
       same shall not have been provided for by
       pre-existing law; nor employ any one in the
       name of the State& unless authorized.by
       pre-existing law.
    We also observe that Article III, Section 53, Constitution
of Texas provides, in part, that "The Legislature shall have no
power to grant. . . any extra compensation, fee or allowance
to a public officer e . . after service has been rendered, or
a contract has been entered into, and performed in whole or
part. . .' This section was included primarily to prohibit
counties or municipalities from doing that which the State
is forbidden to do by Article III, Section 44 above quoted.
    You have also asked whether the Legislature can enact
S. B. 418, Section 4, Sub--sectionE, 61st Legislature, it
having previously passed into law House Bill 902, Acts 58th
Legislature R.S. lg639 Chapter 524, p* 1372 (Article 6228a,,
Sec. 3B3, V.C.S.), a portion thereof reading as follows:
       "Any person who on January 1, 1963, is an
       elective State official as defined herein,
       shall, before October 1, 1964, execute an
       election to become a member of the Retire-
       ment System as of January 1, 1963, or
       election not to become a member of the Re-
       tirement System. This election to become
       a member or not to become a member shall
       be filed with the State Board of Trustees
       on a form provided by the Board. The



                            -   2057 -
Hon. H. D. DeBerry, Jr, page 3   (M-413)



       election not to become a member will include
       a duly executed waiver of all present and
       prospective benefits which would otherwise
       inure to him on account of his participation
       in the System. Contributions shall be due
       and payable for the month of January 1963,
       and each month thereafter, and membership
       service shall begin as of January 1, 1963.
      "Any person who becomes an elective State
      Official by reason of election or appoint-
      ment after January 1, 1963, shall within
      six (6) months from the month in which he
      takes the oath of office or October 1, 1964,
      whichever date is later, execute an election
      to become a member of the Retirement System
      or hot,to become a member of the Retirement
      System. This election to become a member or
      not to become a member shall be filed with
      the State Board of Trustees on a form pro-
      vided by the Board. The election not to
      become a member will include a duly executed
      waiver of all present and prospective benefits
      which would otherwise inure to him on account
      of his participation in the System. Contrl-
      butions shall be due and payable for the
      month in which he takes the oath of office,
      and each month thereafter, and membership
      service shall begin with the first day of
      the month in which he takes the oath of office."
    The only portion of Section 16 of Article I of the Consti-
tution that could be applicable to Senate Bill 418, is that
portion thereof prohibiting the enactment of retroactive laws.
Concerning this prohibition, however, it has long been estab-
lished that not all retroactive legislation is prohibited.
It is onlv that retroactive leajsla:tionthat imvairs. destrovs
or in any"manner divests or ad;ersely affects Gested rights-
that is rohibited. Mellinger v. City of Houston, 68 Tex. 37,
3 S.W. 2&9 (1887); McCain v. Yost, 15 5 Tex. 174 284 S.W.2d
898 (19551.
      _.. ,  The Legislature has the power to a& both retro-
spectively and prospectively. Article I, Section 1.6 of the
Constitution only prohibits the Legislature from passing
retroactive legislation that will impair or destroy vested
rights.



                           -2058-
Hon. H. D. DeBerry, Jr, Page 4     (M-413)



    Senate Bill 418 grants to certain individuals the op-
portunity to become members of the Employees Retirement
System. Because aright is created by Senate Bill 418,
as opposed to destroying a vested right, such legislation
does not violate Article I, Section 16 of the Constitution
of the State of Texas.
    By its terms S.B, 418, Section 4, Sub-section E, 61st
Legislature permits any person who was an Elective State
Official and who has served not less than eight years in
the Legislature of Texas to become a member of the Employees
Retirement System upon certain conditions. This legisla-
tion affects not only persons presently serving the State
in one capacity or another but it also includes persons
who were Elective State Officials. There is no requirement
in the statute that in order to become a member of the Re-
tirement System a person must be presently serving the
State.
    There are numerous cases that characterize ensions as
compensation*, B rd v. City of Dallas et al, 1E8 Tex, 28,
6 S.W.2d 738 (l&)    City of Orange v. Chante, 325 S.W.2d
938 (Tex.Civ.App. 1459          . Austin Fi re and Police
Departments v. City of'A%Tz    2& S W 26 m     (T   Cl
A    1949) reversed i      t &d affiied in ar?'l4;'
Tg!: 101, ;?8 S.W.2d &5!a~rticlt III, Sec. 4E of'the
Constitution expressly prohibits extra compensation to be
paid to any officer, agent, servant or public contractor
after their public service has been performed. Inasmuch
as S.B. 418, Section 4, Sub-section E, 61st Legislature
would permit persons who are not serving  the State in one
capacity or another to become a member of the Retirement
System, and thus draw extra compensation, such legislation
as applied to persons not serving the State is in violation
of Article III, Section 44 of the Constitution of Texas.
This does not mean, however, that an individual who has,
prior to the effective date of Article 6228a, Sec. 3B3,
served the State (such as in S.B. 418 providing not less
than eight years in the Legislature) may not be granted
such prior service when he becomes an officer or employee
of the State and a member of the Employees Retirement
System.
    Although Article 16, Section 62 of the Constitution pro-
vides that the Legislature shall have the authority to make



                            -   2059   -
Hon. H. D. DeBerry, Jr., Page 5 (M-413)


such reasonable inclusions in the State Retirement System as
it deems advisable the power of.the Legislature to make in-
elusions is limited by the following portion of such constitu-
Mona1 Article, to wit;
       9,   . and may make such reasonable in-
       ciuiions exclusions or classifications
       of offi&s    and employees of this State
       as ‘it deems advisable."
    The power of the Legislature to make inclusions in the
Retirement System is limited by the phrase "officers and
employees of this State." Before a person can be included
in the Retirement System he must be either an employee or
officer of the State. Insofar as S.B. 418, Section 4, Sub-
section E, 61st Legislature, attempts to make non-officers
or employees of the State members of the System such legis-
lation exceeds the power conferred by Article lb, Section 62
of the Constitution and is unconstitutional. Since this Act
contains a severability clause, the validity of the remaining
portions of the Act are not affected and a person who is now
or in the future becomes a state employee or elected official,
if otherwise eligible, may qualify under the terms of this Act.
    It is the opinion of this office that the above quoted
portion of House Bill 902, Acts of the 58th Legislature, R.S.
1963, Chapter 524, p. 1372, in no manner restricts or limits
the power of the Legislature to enact S.B. 418, Section 4,
Sub-section E, 61st Legislature. Not only does the Legis-
lature have the inherent power to amend prior acts, but also
Article 16, Section 62, Sub-section A, of the Constitution of
the State of Texas specifically confers on the Legislature
the authority to make such reasonable inclusion of officers~
and employees of the State in the Ret.irementSystem as it
deems advisable.
                       SUMMARY
          Senate Bill 418, Section 4, Sub-section E,
          61st Legislature does not destroy or im-
          pair a vested right. Therefore such legis-
          lation is not such retroactive legislation
          as prohibited by Article I, Sec. 16 of the
          Constitution of the State of Texas. Senate
          Bill 418, Section 4, Sub-section E, 61st
          Legislature as applied to a person who is not
          serving the State in either an elective
          capacity or as an employee Is unconstitu-
          tional and is in violation of Article III,
                             -2060-
Hon. H. D. DeBtrry, Jr., Page 6,      (M-413)


         Section 44 of the Constitution of the
         State of Texas, which prohibits extra
         compensation to be paid to an officer
         or employee of the State of Texas after
         his public service has been performed.
         Ii.B. 902, Acts 8th Legislature R.S.
         1963, Chapter 922 , p. 1372 does not
         prohibit the Legislature from passing
         Senate Bill 418, Section 4, sub-section
         E, 61st Legislature.
                                 /Y




                                      I/
Prepared by Louis 0. Neumann
Assistant Attorney General
APPROVED:
OPINION COMMITIEE
Kerns Taylor, Chairman
George Kelton, Co-Chairman
John Reeves
Harold Kennedy
Jack Goodman
James Quick
W. V. Geppert
Staff Legal Assistant
Hawthorne Phillips
Executive Assistant




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