                                  XAS




Honorable John Connally          Opinion No. M-95
Governor of Texas
Capitol Station                  Re:    Constitutionality of
Austin, Texas                           House Bill 83, Acts
                                        60th Legislature, 1967,
Dear Governor Connally:                 Regular Session
          House Bill 83 amends Article 6228b, Vernon's Civil
Statutes, by adding thereto a new section to be known as Sec-
tion 2B. This new provision provides as follows:
          "The time served in the Legislature of the
     State of Texas and as a County Judge in the
     State of Texas by any Judge coming within the
     purview of this Statute shall be credited to
     the length of judicial service."
          Section l-a of Article V of the Constitution of Texas,
as last amended, 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. . . .I'
          The addition of Section 2B to Article 6228b would have
the effect of allowing service in the Legislature and service as
a County Judge to be credited, for retirement purposes, to the
length of judicial service of one covered by the judicial retire-
mentprovisions of Article 6228b and Artfcle V, Section l-a of
the Constitution of Texas.
          We are of the ooinion that the decision in the case
of Farrar vs. Board of Trustees of Employees Retirement
of Texas, et al 150 Tex. 572 243 S W 2d b88 (1951)
to House Bill 83 and that Houie Bill'83 is:.udc'onstit~~~nal.


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Hon. John Connally, page,2 (M-95 )


          The events prio,rand subsequent to the decision in
Farrar vs. Board of Trustees of Employees Retirement System
of Texas, et al, supra, should be considered in connection
 ith a determination of the constitutionality of House Bill
"83. In 1936 Article III, Section 48a of the Constitution of
Texae wa8 adopted by the people of the State of Texas. This
constitutional provision set up a syetem of retirement for
teachers In the State of Texas.
          In 1946 the people of the State of Texas adopted
Section 62 of Article XVI of the Constitution of Texas. Sub-
section (a) thereof established a.system of retirement for
appointlve officer8 and employees of the State. /rrsubsequent
amendment to this constitutional provision extendzd the system
of retirement to elective as well as appointive officials.-7
          In 1949 the Legislature enacted Article 6228~, Ver-
non's Civil.Statutes, which allowed a teacher to be given re-
tirement credit for services rendered as an employee of the
state and in turn allowed a state employee to receive credit
for retirement purposes.for time served as a teacher. Sub-
sequent to the enactment of Article 6228~, an employee of the
state and a teacher sought to invoke the provisions of Article
6228~ by seekingto be given credit for prior services. The
state employee sought to receive credit for prior service as
a teacher, and the teacher sought to receive credit for prior
services as a state employeei The retirement systems refused
to give these two individuals credit for their prior services
on the grounds that they considered that Article 6228~ was
unconstitutional. The teacher and the state employee brought
suit against the retirement systems and in Farrar vs. Board of
Trustees of Employees Retirement System of Texas~,et al, supra,
the Supreme Court held that:
          11
           . . 0 . if one's retirement benefits as an
     employee are to be based in part on eervicee
     rendered yeara ago a8.a teacher, the Employees
     Retirement Fund will be to that extent depleted.
     That result would not serve the dominant purpose
     of,the Employees Amendment as above discussed, in
     Pa&., it would be antagonistic to It. And the
     same would be true as to the Teachers Amendment if
     one',8benefits thereunder,are based on and paid in
     part for, service aa en employee rendered long be-
     fore that amendment was adopted. Sec. bea of Art.
     III of the Constitution, eupra, clearly reatrlcts
     teacher retirement benefita to teachers, while Sec.
     62 of Art. XVI, supra, with eaual clarity restricts

                              -431-
Hon. John Connally, page 3 (M-95 )::;


     employee retirement benefits to employees. It
     follows,that neither can be suffered to encroach
     upon the other; nor can any other retirement system
     be permitted to'encroach upon either of them, until
     the Constitution is amended to permit it."
          Subsequent to the decision in Farrar vs. Board of
Trustees of Employees Retirement System of Texas, et al, supra,
Section b3 f Article XVI of the Constitution of Texas was
adopted. T&s constitutional provision authorized members of
the Teacher Retirement System to be given credit for prior
service rendered by them as an appointive officer or employee
of the state. In addition, this constitutional provision au-
thorized members of the Employees Retirement System to be given
credit, for retirement purposes, for prior services as a teacher.
          The provisions of House Bill 83 give members of the
judicial retirement program credit, for retirement purposes, for
prior servicesperformed as a member of the Legislature or as a
County Judge and not solely those services performed as District
or Appellate Judges as contemplated by Section l-a of Article V
of the Texas Constitution and Article 6228b.  In Farrar vs. Board
of Trustees of Employees Retirement System of Texas, et al, supra,
the Supreme Court held unconstitutional Article b22tk which had
attem ted to do almost exactly what is being attempted in House
Bill 83. Article 6228~ attempted to give teachers, appointed
officials and employees of the state, retirement credit for em-
ployment in activities other than those covered by the retire-
ment system of which they were members. House Bill 83 is pres-
ently attempting to give District and Appellate Judges credit,
for retirement purposes, for services rendered other than as a
District or Appellate Judge. As the effect of House Bill 83
is almost identical in nature to that attempted by Article 6228~,
we are of the opinion that the reasoning and logic of Farrar VS.
Board of Trustees of Employees Retirement System of Texas, et
al, supra, applies and that House Bill 83 is unconstitutional
as it violates the provisions of Section l-a of Article V of
the Constitution of Texas.
          Consequently~,in the,absence of a constitutional amend-
ment allowing members of the judicial retirement system to be
given credit for prior services as a member of the Legislature
or as a County Judge, any attempt by statutory enactment to allow
such credit would be in violation of the Constitution.
                         SUMMARY
                         __-----
          House Bill 83, Acts of 60th   Legislature, 1967,


                               -432-
Hon. John Connally, page 4 (M-95 )


    Regular Session, which provides for giving members
    of the judicial retirement system credit, for re-
    tirement purposes, for time served in the Legis-
    lature of the State of Texas or as a County Judge
    in this State, is in violation of Section l-a of
    Article V of the Constitution of Texas, and is
    therefore unconstitutional. Farrar vs. Board of
                                                     ,




                                         General of Texas

Prepared by J. C. Davis and Pat Bailey
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Ralph Rash
W. 0. Shultz
Houghton Brownlee
Jack Sparks
A. J. CARUBBI, JR.
Staff Legal Assistant




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