The Honorable      Everett   L. Anschutz                       Opinion    No.   H-   634
Executive   Secretary
Employees     Retirement     System  of Texas                  Re:  Effective     date of Senate Bill
Box 12337,    Capitol   Station                                90 relating    to interest  in the Employ-
Austin,   Texas    78711                                       ees Retirement      System.

Dear   Mr.   Anschutz:

         You   have     requested     our     opinion     concerning     the effective        date   of Senate
Bill 90 of the 64th Legislature,              (1975).  Section         10 of the bill    amends       article
6228a.  section  7, V. T. C. S.,            to read as follows:

                   B.      The State Board of Trustees,            on August    31,   1975,
                           and thereafter     on the last day of each fiscal          year
                           year,    shall transfer     from the Interest      Fund to the
                           Employees      Saving Fund interest         computed     at the
                           rate of five per cent (5%) on the mean balances                 of
                           the amounts     for the fiscal     year   standing   to the
                           credit   of all members.        In addition,    the Board
                           shall,   as required     during the year,      transfer     in-
                           terest   from the Interest      Fund to the Employees
                           Saving Fund in amounts          equal to the interest
                           credited    during the year to members            whose ac-
                           counts are closed       by death,     retirement,     or with-
                           drawal    of contributions.       (Emphasis     added).
                           . . .

         Section      8A(l)(t)   of article      6228a,     was   amended       to provide:

                   After August     31,   1974,    intetest   computed     at the rate of five
                    5%) per cent year on amounts            credited   to the accounts       of in-
                   dividual    members      is earned      monthly,   to be credited      on
                   August    31, 1975,    and thereafter       on the last day of each fis-
                   cal year.     However,      after the last day of the month in which
                   this Act takes effect,       interest    shall be credited     to accounts
                   closed   by death or withdrawal          of contributions     through     the
                   last day of the month preceding            the calendar     month in which
                   death occurs     or in which the withdrawal           request    is validated
                   by the Employees        Retirement       System,    and interest     shall be
                   credited    to accounts    closed     by retirement      through the date
                   of retirement.       Interest     shall be computed       on the mean bal-
                   ance standing     to the credit      of the member      for the fiscal     year,



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The   Honorable     Everett    L.   Anschutz     - Page     2   (H-634)




                   or for the applicable         portion of the fiscal  year in case        of
                   death,  retirement,         or withdrawal   of contributions.
                   (Emphasis     added).

        Senate Bill 90 contained     an emergency      clause  and was passed     by a re-
cord vote ot 135-O by the House.        However,     the Senate passed    the Bill by a
voice vote and therefore    it may not take effect until 90 days “after         the ad-
journment   of the session.   ” Tex.   Const.   art.   3, sec.  39; Morris    v. Calver~t,~
329 S. W. 2d 117 (Tex. Civ.App.       - - Austin    1959,  writ ref’d.,  n. r. e. ).

           The Legislature      adjourned   at midnight,     June 2, 1975.      Your question
arises    from the opinion of the Court of Civil Appeals            in Morris,      supra,    where
in dicta,     a statute was said to be effective      on the 90th day after adjournment
(adjourned      June 7, held effective     September     5).   The 90th day after       the June 2
adjournment       would be August      31, and as you have indicated         Morris    would
suggest     that Senate Bill 90 would be effective        at 12:Ol a.m.      on that date.      How-
ever,   we cannot avoid the conclusion          that the court in Morris       erred    in suggest-
ing that act to be effective       owseptember      5, and we believe       that its effective    date
was September         6.   This would not have constituted       reversible     error    in that case,
for the question       before  the court was whether       the Act was in effect on July         19.

          The method         for computing     the effective    date of a “90-day        act” is stated
in Halbert     v. San Saba Springs         Land & Live-Stock        Association,        34 S. W. 639
(Tex.    Sup.    1896).     In that case the Legislature        adjourned     on March       31, and the
act in question      was held effective       on June 30, the 91st day after adjournment,
or after 90 days.          The Halbert     case has been cited repeatedly             as controlling
the method      of computation       of time     in other circumstances.           See
                                                                                   --    Union Assur.
sot.   v. Equitable       Trust   Co.,    58 S. W. 2d 58 (Tex.       Comm.       1933;)Rudco      Oil
& Gas Co. v. Lemasters,              146 S. W. 2d 806 (Tex.         Civ.App.      --Eastland      1940,
writ dism.,       jdmt.    corr.  ); Snow v. Snow,        223 S. W. 240 (Tex. Civ. App.           --San
Ant,onio    1920,   no writ).      Accordingly,      it is our opinion that Senate Bill 90 be-
comes     effective     at 12:Ol A.M.,       September      1 1975,   the 91st day after adjourn-
ment.

        However,      the clear     intent of the Legislature      was to compute      the interest
to be transferred     on August       31, 1975,   at the rate of 5%.     Since the effective      date
of the Bill is September         1, such a transfer      would require    a retroactive     effect to
be given to the Bill.      While     article  1, section   16 of the Texas    Constitution      pro-
hibits retroactive     statutes,     it is well established    that this prohibition     does not ex-
tend to all statutes.      53 Tex.      Jur. 2d Statutes,    $28.

                   [sl  tatutes  . . . may operate    retrospectively          when
                   it is apparent    that such was the intention,          provided
                   no impairment        of vested rights   results.        cox v.
                   Robison,     150 S.W.    1149, 1156 (Tex.Sup.           1912).

                   Section   16, Art.  l., prohibits the making  of re-
                   troactive   laws in so far as they destroy  or impair


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The   Honorable      Everett     L.   Anschutz      - Page    3   (H-634)



                     vested. rights.  Deacon  v.          City of Euless,        405
                     S. W,. 2d 59. 62 (Tex. Sup.           1966)


See also Texas         Water   Rights    Commission        v. Wright,       464 S. W. 2d 642 (Tex.
Sup.    1971);   American      Surety    Co. of New York v. Axtell             Co. 36 S. W. 2d 715 (Tex.
Sup.    1931);     City of Fort Worth v. Morrow.               284 S. W. 275 (Tex. Civ.App.               --kt.
Worth     1926,    writ ref ‘d. ): and Atto mrney General          Opinion     H-14   (1973).       Attorney
General     Opinion     M-28   (i$67)    held that a statute which           allowed    death benefits         to sur-
vivors    of certain     state employees       could not be given a retroactive               effect.     However,
that opinion      cited only “no writ”       cases    from the Courts         of Civil Appeals         which held
article    1, section     16, to prohibit     a retroactive       law which “creates          a new obligation,
[or]    imposes      a new duty       . . in respect      to transactions       or considerations          already
passed.    ” Tu.rbeville     v. Gowdy,      272 S. W. 559, 561(Tex.           Civ. App.    --Ft~      Worth     1925,
no writ).    We have discovered          no such restrictions         in a Texas      Supreme        Court case
and do not believe        the purpose      of article    1, section      16 was to prevent         the Legisla-
ture from      imposing     all retroactive      obligations      on the State particularly           where     no
vested    rights    are impaired.       See   Texas     Water     Rights    Commission        v. Wright,        supra.
While    Turbeville      may constitute      a correct      statement      of the law With respect           tolt?le
imposition      of new obligations       on parties     other than the State,         in our opinion        it is
not applicable       to retroactive     obligations     of the State.       Accordingly,        while M-28
dealt with a recently         enacted    constitutional      provision      and therefore       involved      different
facts from those before           us, Attorney      General      Opinion    M-28    is overruled        to the ex-
tent it conflicts      with this opinion.

         In our view Senate Bill 90 in no manner                impairs   vested    rights   and in light of
the Legislature’s     clear    intention   to enlarge     the August     31,  1975,    transfer   it may be
given a retroactive      effect.     In addition,    the Legislature      expressly      provided   that
after August     31, 1974,    interest    was to be earned        monthly    and credited      on August  31,
1975.   In our opinion this provision           is valid for the foregoing       reasons.       However,
that portion   of the Bill regarding        interest    credited    on accounts     closed   by death or
withdrawal,   of contributions       is not operative      until “after   the last day of the month in
which [the]    Act takes     effect,   ” and therefore      is not operative     until October      1, 1975.  .

                                         SUMMARY

                     Senate Bill 90 will be effective      at 12:Ol AM
                     September    1, 1975.     Those portions     of the
                     Act which provide     for monthly     earnings     of 5%
                     interest  to be credited    on August    31,   1975,
                     may be validly    given effect.     The portion      deal-
                     ing with interest   credited    on accounts     closed




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The   Honorable   Everett   L.   Anschutz        - Page    4     (H-634)




                  by death or withdrawal    of contributions is not
                  operative  until after the last day of the month
                  in which the Act takes effect which is 12:Ol
                  AM October     1, 1975.

                                                          Very    truly    yours,




                                                          Attorney     General      of Texas




Opinion   Committee

jad




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