                       August 20, 1971

Hon. Everett L. Anachutz          Opinion NO. M-941
Executive Secretary
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 pre-
                                        vloualy 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 Leglela-
        ture, Regular Seaelon, 1971. Each of theee Act@
        authorizes credit for service not prevloualy re-
        cognized 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 re-
        tirement ayetema.
            'In view of your previous oplnlona, we re-
        spectfully 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.9paid
        by countlee.

                              -4589-
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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 (Employees Retirement System of Texas
lng Subsection H providing that any contributing member of
the S atem, upon completing the requSred number of month@
   con rl utlng service necessary to eetablleh previous aer-
L5z-3-5
vice, 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. Ser-
vice as a Board Member of a statutory Texas State DepartmK
agency or commlselon having statewide jurisdiction, the em-
ployees of which under requirement.8of law, are members of
the Employees Retirement System, (with certain provisos not
pertlnent~to thie inquiry), and 3;   Judicial service a@ a
commlssloner
i7rlmlnalDl~~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 be-
come 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 per-
eon 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., (Em-
oloseee Retirement System of Texas) bs addlnn a new Sub-
Hectlon 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 elmultaneous;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 legle-
latlon now reflected In Article 2922-1, Vernon's Civil
Statutes, which defines those who are entitled to the bene-
fits 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 Amend-
ment 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 depart-
ment 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@ Retlre-
ment Syatem. This statute gave rise to the laweult culmlnat-
 lng 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 conetl-
tutlonal amendment was the Intention of the makers and
adoptera to prevent encroachment or the merging or blend-
ing 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, exclu-
        rionr, 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 lnclu-
        slons, 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'partl-
        cl ate In the Fund authorized In this sub-
        zz%mzEf      persons partlclpati   In a retlre-
        ment &tern crea,tedoursuant to izctlon 48-a
        of Article III of this Conetltutlon @hall not
        be eiigl'oleto 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, Sub-
        section (b) of this Constitution shall not be
        eligible to participate In the Fund authorized
        In this subsection, except a6 otherwise pro-
        vided 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 fittheir
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 classlflca-
tlons 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, ,lt1s 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 re-
tirement 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.
        ArticleV, 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 com-
mlssloner, jud-;eor 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 Retlre-
ment System of Texas) provided that.'auchperson la not
almultaneoualy receiving credit In another retirement
system. Any present participant or member of the retlre-
ment 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 com-
mlaaloner as a credit for retirement purposes under the
State B~~plogeeaRetirement 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 non-
participant 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 unconatl-
tutlonal, 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.lttleohange. 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 per-
sonnel 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 capac-
ities, 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 decl-
slon, 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 eer-
vice that la credited by another retirement system. P
further coaent factor dispelling the Influence of the
Farrar decisionupon the question? under consideration 1s
fhatslnce Farrar, Article XVI, Section 62 of the Constl-
tutlon 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 Consti-
tution, 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 cer-
          tain 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’ursvery   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




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