   OPFKEOFTHEATTORNEY
                   GENERAL.
                         STATE
                             OFTEXAS
   JOHN    CORNYN




                                        November 3,1999



The Honorable Jim Solis                           Opinion No. JC-0137
Chair, Committee on Economic Development
Texas House of Representatives                    Re: Whether section 8 14.1043 ofthe Government
P.O. Box 2910                                     Code as adopted by House Bill 3504 has no effect
Austin, Texas 78768-2910                          by operation of section 60 of Senate Bill 1130
                                                  (RQ-0105-JC)

Dear Representative Solis:

        You ask about the relationship between two bills adopted by the Seventy-sixth Legislature
that provide temporary service retirement options for certain state employees. Specifically, you ask
whether section 814.1043 ofthe Government Code as adopted by House Bill 3504 has no effect by
operation of section 60 of Senate Bill 1130. Both Senate Bill 1130 and House Bill 3504 contain
provisions establishing temporary service retirement options for Texas Department of Health
employees in chapter 814 ofthe Government Code. Because section 60 of Senate Bill 1130 provides
that the change in the law made to section 814.1041 of the Government Code by that bill prevails
over any other amendments to section 8 14.1041 or similar legislation adopted in the same legislative
session, we conclude that section 8 14.1043 of the Government Code as adopted by House Bill 3504
has no effect.

        Both Senate Bill 1130 and House Bill 3504 provide temporary service retirement options for
certain state employees who are members of the Employees Retirement System of Texas (“ERS”).
Senate Bill 1130 enacts various changes to ERS provisions in the Government and Insurance Codes.
For purposes of your query, the most relevant is an amendment to section 814.1041 of the
Government Code, which provides a temporary service retirement option for ERS members
employed by the Texas Workforce Commission, the Texas Department of Human Services, the
Texas Department of Mental Health and Retardation, and the Texas Department of Health whose
jobs are eliminated as a result of contracts with private service providers or other reductions in
services. Section 14 of the bill amended section 814.1041 as follows:

                        TEMPORARY SERVICE RETIREMENT OPTION FOR
                MEMBERS AFFECTED BY PRIVATIZATION OR OTHER
                REDUCTION IN WORKFORCE. (a) This section applies only to
                members of the employee class who are not otherwise eligible to
                retire and whose positions with the Texas Workforce Commission,
                the Texas Department ofHuman Services, [or] the Texas Department
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              of Mental Health and Mental Retardation, or the Texas Denartment
              of Health are eliminated as a result of contracts with private service
              providers or other reductions in services provided by those agencies
              and who separate from state service at that time.

                   (b) A member described by Subsection (a) is eligible to retire and
              receive a service retirement annuity if the member’s age and service
              credit, each a        increased onlv as needed to meet minimum age
              and service reauirements. but not bv more than [by] three years,
              would meet the minimum age and service requirements for service
              retirement under Section 8 14.104(a) at the time the member separates
              t?om state service as described by Subsection (a). The annuity of a
              person who retires under this subsection is computed on the person’s
              accrued service credit increased by the minimum amount of service
              credit necessarv to meet the service credit reauirement for retirement,
              but not bv more than three years.

Tex. S.B. 1130, Act of May 29, 1999,76th Leg., R.S., ch. 1541, 5 14, 1999 Tex. Sess. Law Serv.
5292, 5295-96 (additions and redactions as shown in bill). Senate Bill 1130 also deleted the
following subsections from section 814.1041:

                   (c) A member described by Subsection (a) becomes eligible to
              retire and receive a service retirement annuity on the date on which
              the member would have met the age and service requirements for
              service retirement under Section 814.104(a) had the member
              remained employed by the state if, on the date of separation from
              state service, the member’s age and service credit, each increased by
              five years, would meet age and service requirements for service
              retirement under Section 814.104(a). The annuity of a person who
              retires under this subsection is computed on the person’s accrued
              service credit.

                    (d) If a member described by Subsection (c) is reemployed by the
               state before retirement, the time between the member’s separation
               from state service and reemployment may be used only to compute
               eligibility for service retirement and may not be used to compute the
               amount of any service retirement annuity.

See id. As amended, section 814.1041 applies only to positions eliminated by privatization or other
reductions in workforce before September 1,200l. Id. at 5296.

       These amendments to section 814.1041 achieve several purposes. First, subsection (a) now
makes the temporary service option available to ERS members employed by the Texas Department
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of Health. Second, the amendments to subsections (a) and (b) clarify that an employee who retires
pursuant to the temporary service retirement option receives an annuity computed on the basis of the
person’s accrued service credit increased only by the minimum amount of service credit necessary
to meet the service credit requirement for retirement. See Tex. Att’y Gen. Op. No. JC-0027 (1999)
(concluding on basis of plain language of section 8 14.1041 prior to amendment that the service
annuity of a person who retired under subsection (b) was to be computed on the basis ofthe person’s
accrued service credit increased by three years). Third, by deleting former subsections (c) and (d),
the amendments discontinue the temporary service option for ERS members who will be eligible to
retire in three to five years.

         House Bill 3504 enacts a temporary service retirement option for a special subset of ERS
members - employees of the South Texas Hospital who separate from state service on or before
September 1,200O. The Hospital is currently operated by the Texas Department ofHealth. See TEX.
HEALTH& SAFETYCODEANN. 5 13.003 (Vernon 1992). House Bill 3504 provides a long-range
plan for South Texas Hospital, authorizing the Texas Department of Health to construct new
facilities and to contract with public or private health care providers for the management and
operation of the new facilities by September 1,200O. Tex. H.B. 3504, Act of May 21, 1999,76th
Leg., R.S., ch. 1106, $5 l-6, 8, 1999 Tex. Sess. Law Serv. 3975, 3975-77. The Department is
required to reassign any South Texas Hospital employee who is “displaced as a result of a contract
entered into       under this Act or the transfer of services from the South Texas Hospital” to an
open position within the Department for which the employee is qualified and must also require the
health care provider with which it contracts to offer employment to displaced employees. Id. 4 7,
at 3976-77.

       Section 9 of House Bill 3504 provides a temporary service retirement option for ERS
members who are employed at South Texas Hospital by adding section 814.1043 to the Government
Code as follows:

                       TEMPORARY SERVICE RETIREMENT OPTION FOR
                MEMBERS EMPLOYED AT SOUTH TEXAS HOSPITAL.
                (a) This section applies only to members of the employee class who
                are employed by the Texas Department of Health at the South Texas
                Hospital on or after the effective date of this section and on or before
                September 1,2000, and who separate from state service during that
                time.

                    (b) A member described by Subsection (a) is eligible to retire and
                receive a service retirement annuity if the member’s age and service
                credit, each increased by three years, would meet age and service
                requirements for service retirement under Section 814.104(a) at the
                time the member separates from state service as described by
                Subsection (a). The annuity of a person who retires under this
The Honorable Jim Solis - Page 4               (X-0137)




              subsection is computed on the person’s accrued service credit
              increased by three years.

                   (c) A member described by Subsection (a) becomes eligible to
              retire and receive a service retirement annuity on the date on which
              the member would have met the age and service requirements for
              service retirement under Section 814.104(a) had the member
              remained employed by the state if, on the date of separation from
              state service, the member’s age and service credit, each increased by
              five years, would meet age and service requirements for service
              retirement under Section 814.104(a). The annuity of a person who
              retires under this subsection is computed on the person’s accrued
              service credit.

                    (d) If a member described by Subsection (c) is reemployed by the
               state before retirement, the time between the member’s separation
               fkom state service and reemployment may be used only to compute
               eligibility for service retirement and may not be used to compute the
               amount of any service retirement annuity.

                   (e) A member who applies to retire under this section and the
               Texas Department ofHealth shall provide documentation required by
               the retirement system to establish eligibility to retire under this
               section.

Id. 5 9, at 3977. The effect of section 814.1043 would be to provide retiring South Texas Hospital
ERS members the same temporary service retirement options available under section 8 14.1041 prior
to its amendment by Senate Bill 1130. An ERS member who retired under section 814.1043(b)
would be entitled to an annuity computed on the basis of the person’s accrued service credit
increased by three years rather than the minimum amount of service credit necessary to meet the
service credit requirement for retirement. In addition, section 814.1043(c) would provide a
retirement option for ERS members who are eligible to retire in three to five years.

        You inform us that the Legislative Council has determined that the temporary service
retirement option provision in House Bill 3504 is without force and effect due to section 60 of
Senate Bill 1130. We agree with the Legislative Council’s conclusion. Section 60 of Senate Bill
1130 provides:

                       The change in law made by this Act to Section 814.1041,
               Government Code, prevails over any other Act of the 76th
               Legislature, Regular Session, 1999, regardless of the relative dates of
               enactment, that purports to amend Section 814.1041 or create a
               similar provision to allow a temporary retirement option for members
The Honorable Jim Solis - Page 5                 (X-0137)




               of the Employees Retirement System of Texas whose positions are
               subject to privatization or a reduction in workforce or who are
               transferred between state agencies, and any amendment to Section
               8 14.1041, Government Code, or similar provision in another Act of
               the 76th Legislature, Regular Session, 1999, has no effect.

Tex. S.B. 1130, Act of May 29, 1999,76th Leg., R.S., ch. 1541, 5 60, 1999 Tex. Sess. Law Serv.
5292,530X.

        Absent section 60, we would give effect to both the Senate Bill 1130 amendments to section
814.1041, which affect ERS members at several state agencies, including the Texas Department of
Health, for the entire biennium, and section 8 14.1043 as adopted by House Bill 3504 by construing
the latter provision to establish special retirement options for ERS members leaving state
employment between August 30,1999 and September 1,2000, as a result of the Texas Department
of Health’s withdrawal from the management and operation of South Texas Hospital. See TEX.
GOV’T CODE ANN. 5 3 11.025(b) (Vernon 1998) (“if amendments to the same statute are enacted at
the same session of the legislature, one amendment without reference to another, the amendments
shall be harmonized, if possible, so that effect may be given to each”). However, even though the
enactments could be harmonized, we must follow the specific instructions in Senate Bill 1130
regarding the relationship between the amendments to section 814.1041 in Senate Bill 1130 and
similar enactments. See Tex. Att’y Gen. Op. No. DM-234 (1993) at 4 (rule of statutory construction
in section 3 11.025(b) of the Government Code does not apply where the legislature has “clearly
expressed its intent with regard to the proper course should a provision of that law and another law
adopted in the same session conflict”); see also Tex. Att’y Gen. Op. No. DM-280 (1994) at 2-3
(same).

         Section 60 of Senate Bill 1130 reflects the legislature’s specific intent that the changes to
section 814.1041 of the Government Code in Senate Bill 1130 prevail not only over other changes
to section 814.1041 made in the same legislative session but also over any other act that “create[s]
a similar provision to allow a temporary retirement option for members ofthe Employees Retirement
System of Texas whose positions are subject to privatization or a reduction in workforce or who are
transfetredbetweenstateagencies.”       Tex. S.B. 1130,ActofMay29,1999,76thLeg.,R,S.,ch.          1541,
5 60,1999 Tex. Sess. Law Serv. 5292,530X. Section 814.1043 ofthe Government Code as enacted
by House Bill 3504 is “a similar provision to allow a temporary retirement option for members of
the Employees Retirement System of Texas whose positions are subject to privatization.” Id. 5 60,
at 5308. First, like Senate Bill 1130, House Bill 3504 affects ERS members employed by the Texas
Department of Health. (As noted above, Senate Bill 1130 amends section 814.1041 to make that
temporary service retirement option available to all Texas Department of Health employees who are
displaced by privatization or other reductions in services.) Second, as a result of the House Bill 3504
 long-range plan for South Texas Hospital, these ERS members may be displaced as a result of a
 contract between the Texas Department of Health and “one or more public or private health care
 providers or entities” for the provision ofhealth care services. Tex. H.B. 3504, Act ofMay 21,1999,
 76th Leg., R.S., ch. 1106, $9 2-3, 1999 Tex. Sess. Law Serv. 3975, 3976. Thus, like Senate Bill
The Honorable Jim Solis - Page 6                (JC-0137)




1130, House Bill 3504 is intended to affect ERS members who may leave state employment as a
result of privatization.

        In sum, section 814.1043 of the Government Code as adopted by House Bill 3504 is a
provision similar to section 814.1041 of the Government Code and therefore has no effect by
operation of section 60 of Senate Bill 1130. This does not mean, however, that South Texas Hospital
employees who are displaced as a result of House Bill 3504 will have no temporary service
retirement option available to them. Like employees of the Texas Workforce Commission, the
Texas Department of Human Services, and the Texas Department of Mental Health and Mental
Retardation and other employees ofthe Texas Department ofHealth, ERS members whose positions
with the Texas Department of Health at South Texas Hospital are eliminated as a result of contracts
with private service providers or other reductions in services and who separate from state service at
that time may be eligible to retire under section 814.1041 of the Government Code.

         Finally, we note that we are aware of at least two other bills enacted by the Seventy-sixth
Legislature that either amend section 814.1041 of the Government Code or may create a similar
provision. See Tex. H.B. 1748, Act ofMay 13,1999,76thLeg., R.S., ch. 264,1999 Tex. Sess. Law
Serv. 1122 (adding section 814.1042 of the Government Code to provide a temporary service
retirement option for ERS members whose positions with the Texas Department of Health at the
Texas Center for Infectious Disease are eliminated and who separate from state service as a result
of certain contracts or transfer of research activities); Tex. H.B. 2877, Act of May 22, 1999, 76th
Leg., R.S., ch. 1013, 1999 Tex. Sess. Law Serv. 3797 (amending section 814.1041 of the
Government Code). We do not address the effect of section 60 of Senate Bill 1130 on any
legislation other than House Bill 3504.
The Honorable Jim Solis - Page 7              (JC-0137)




                                      SUMMARY


                       Because Senate Bill 1130 provides that the change in the law
              made to section 814.1041 of the Government Code by that bill
              prevails over any other amendments to section 814.1041 or similar
              legislation adopted in the same legislative session, section 814.1043
              of the Government Code as adopted by House Bill 3504 has no effect.




                                             Attorney General of Texas


ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee
