                                                        R-663

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                          OFE’ICE     OP

            ,mE     kFTOR%              &-NER&
                        AUSTIN.     TEXAS
PRICEDANIEL
     GENERAL
*TTO*NEY                  August 13,..
                                     1947   '.

    Major Genera1.K. L. Berry       Opinion No. V-336
    The Adjutant General of Texas
    Austin.t.Texaa                  $8: ~Eligibllityof ac-
                                         aounting and cua-
                                        .'todialclerks in
                            1            the,office of the
                                         U.,6. Property and
                                         Disbursing.Orricer
                                         for Texas toqbene-
                                         fita under the Em-
                                         ployees~Retirement
                                         System or Texas.
    Dear Sir:
              Your request for an'opinionon .thaa.bovesub-
    ject is as followa:~      ~.- ~'
             "H. B. 168, Fiftieth LegislatureIof
        Texas, providesfor certain retirement
        benefits, State employees.:,Paragraph 1,.
        Ciroular No. A, 7 May 1946, office of the
        Chief, National Guard Bureau authorizes
        the Adjutant General of the State to em-
        ploy and/or disoharge,civilian ticcount-
        ing clerks to assist the U. 6. Property
        and Disbursing Officers insthe perform-
        ante of theirduties. Paragraph 6 of t&s
        same circular authorizes the Adjutant Gen-
        eral to determine the rate of pay of the,
        above mentioned accounting~olerkswithin
        limitations. Paragraph 7 of this circu-
        lar authorizes the State Adjutant General
        to determine the hours of work' 'the ac-
        counting clerks thus employe~d, u speci-
                                       f not be
        fies that said hours of work wil
        leas than those set for other employees
        of the State engaged 'insimilar work.
             "Althoughthe subject accounting
        clerks a'repaid from~Federal.funds,,they
        are in effect State employees, sincethey
        a.reemployed by the Adjutant General, who
        sets their rate of pay, and determines the
Major General K. L. Berry, Pa&e 2, v-336.


     number of hours they shall work. The Ad-
     jutantGenera1 also may discharge said em-
     ployees. In view or this your opinion is
     requested on the following question:
          "Are accountingandcystodial clerks
     employed in the off300 or the u..S. Prop-
     erty and DisbursingMficer for Texas,.
     under the provisions of N. 0. B. Circular
     No. 4, 7 May i9 6, subject ~tothe provia-,
     ions of H. D. 1ii
                     8; Fiftieth Legislature of
     Texas, and are they eligible for retire-
     me&under said ~bill?
          "If the opinion of the Attorney Gen-
    eral on-this question is not in the ar-
    .fi?znativa,then informationis desired as
    to whether subject employees oan become
    eligible for retirement,under the provis-
     ions of H. B. 168, while they are perform-
    ing services for the State of Texas, and
    receiving their pay from Federal funds."      ~':.
        ' The eligibilityof the described employees
depends solely upon whether they are withinthe con: ~~~_
templationof House Bill No. 168.
          From examination.of.the.~cotnplete
                                          Aat, .we
donolude that such employees a.renot contemplated~by
the Act.
          The.%embership.annuityvdefined i.nSubseo-
tion Q of Section l,,whia,his one of the elements of
the benefits,provided~for, is made up.Of %%3erve
funds contributedby a megber~*'an    eq\al~amount,~
                                                  of
reserve funds contributed& --the.%%e.'     --
          While the State mightcontribute~to t&h a
reserve fund on a basis of 'somepercgntage.~of.~the,
                                                  ai
mountspaid such~employees.by.the,Fedara,lGovernment,
the Act does not so~.aontemplats:..QubseotionA Of.Sec-
tion 8 provides that "all contributions.madeby the
State shall be~fromand:charged.tothe respeotiva,  funds
appropriated,allocated,~andprovidad,t,o,paythe sal-
ary or oompensation,of,~,ths
                           amploya~efor .whosabenefit
the oontribut1on.i~mad~e.n,The fund,,oreated by aon-
tributionsby the.State of Texasaa part of the total
funds of the Systemis oalled the Wtat,e Membership
AccumulationPund." Contributionsby the state as set
Major Caneral K. L. Berry5 Page ,3,   V-336.
                                                       203


  out in Subparagrapha~.ofParagraph 2 of $ubaeotlon
 A of Section 8 ia~.,under,a~plan'ivhereby
                                         the State oon-
 tributes funds neoeasaryto make up ita.allooate'por-
 tlon of the fund'savailable for benefits to members.
 The meohanics for oolleationof the State's oontribu-
 tions is contained inParagraph Z.of.,Subaeotion  B of
 seation 8.which contemplatesatthe outset that funds
 appropriated to the payment'.of salaries shall be,re-
 appropriatedto the exte.ntneoesaary to make up,the
 initial.oontribution,by  the~~state.This Procedure
 is oarried out by oertifioa,tlon bythesSta.teBoard of
 Trustees for the.Retirehient'System to the State Comp-
 troller of Publio Accounts and the State.,Treaaurer  of
 the total aompenaationpaid to members and upon whioh
 the necessary amounta..are computed~and transferred by
 the Ctiptrollertomthe 'StateEmployees Retirement Fund
 rromthe reapeotive funds appropriatedto departments.
 Thereafter,similar certificationsare made before eaoh
 session of the Legislature in order tha,tproper appro-
 priations may be made. Obviously from the.abwe, it
 appears that this law oould not be oanplied.wd.th  in rea-
 peot to,the employees named Sn your inquiry, if for no
 other reason than that the~initial contributionsby the
 State~are taken from appropriationsby the State Legia-
 lature  setting up the normal funds'ror~thenpayment of
-employeesof the State. The ,employeesabout whiah you
 inquire are.not @aid-from State apprspriations,and
 therefore,no manhinery is prOvidedfor a contribution
 by the State in their behalf.
           Further evidenoe of the faot that such em-
 ployeesas you inquire about are not oontemplatedby
 the Act, is disclosed by the method provided for ef-
 fecting the employee's contributionto the fund. .Sub-
 paragraph a Of:Paragraph1 of Subsection B Of Section
 8 dealing with the golleotion of member's contributions
 preaoribea that "each department of the State shallcause
 to be deduoted on each and every pay roll of a member
 for each.end every pay roll period beginning on the date
 of thenestablishmentof the membership.and full opera-
 tion or the Retirement System the contributionspayable
 by'such member, as provided in this Act . . ." Subpara-
 grtiph'b'maikes
               further provisionsdealing with payroll
 deduations; The provisions of the Aot further provide
 that payrollsdeauationsand membership shall be auto-
 matio. Obviously,the State of Texas is in no pOSitiOn
 to enforce nor to effect payroll deductions from a Fed-
 eral payroll.
,
       b¶ajorGeneral K. L. Berry, Page A, V-336.
2134

                 Therefore,under the_circumstancesoutlined
       in your letter, it is the opinion of,thla departments
       that such accounting clerks are not contemplatedby
       House Bill No. 168.
                 As to your final inquitiyand ~requeatfor ink'
       formation as to whether auch.employees,oanbecome elig-
       ible for retirement,we have zead the entire Act-and
       find no provision for the acoeptanoe of members other
       than those employedand paid by the State. We might
       suggest that should the funds from whioh such etiploy-
       eea are paid be contributeddirectly to the4tate iron
       the Federal Governmentand thereafterappropriated.by
       legislative~enactment.forthe payment of the salaries
       of such persor+sas employees of the Adjutant General*s
       Department,all subject of course to enabling legiala-
       tion by the.TexasLegislature,audh employeea'mightbeg
       eligible. However, these:are matters for the Legisla-
       ture and the appropriateFederal authority.
                                 .STJMMARY',
                  .Accountingclerks employed, supervised
              and'aubjeotto discharge by the'Adjutant Gen-
              eral of Texaa~,and whose rate of pay %s set
              by him, under authority 'ofthe United States
              Govermnent,'~hoaeaalarisa a'repaidto theme
              by the United States Government,are not with-
              in the provisionsnor eligible,for benefits
              of the law creatiugthe %nployeea Retirement
              System of Texas."
                                    Yours very truly
                              A’l?‘l!ORNEY   GENRlUL'OF TRXAS



       NM0 : jmc                                Bea~MaDaniel
                                                   ,Asaiatant


                              APPROVED:

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                              ATTORNRY GENERAL.
