The Honorable K. D. Hall             Opinion No. H-963
County Attorney
Refugio County                       Re: Pension plan for
County Courthouse                    employees of Refugio County
Refugio, Texas 78377                 Hospital.
Dear Mr. Hall:
     You advise that Refugio County elected to participate
in the statewide Texas County and District Retirement System,
beginning January 1, 1968, shortly after the system was
established in 1967 by article 6228g, V.T.C.S. At that
time, the county hospital was leased to a private agency and
its employees were not then county employees. Subsequently,
the county undertook the operation of the hospital (which is
governed by the provisions of Texas Revised Civil Statutes,
title 71, chapter 5) and all hospital personnel became
county employees.

     The hospital employees have asked the county commissioners
court to set up a separate pension system for them independent
of the Texas County and District Retirement System.  The
Refugio County Commissioners Court has neither formally
precluded hospital employees from becoming members of the
statewide system, nor passed an order separately requiring
them to become members of the statewide system.
     You ask:
           Can the employees of a hospital owned and
           operated by the County of Refugio form
           their own pension plan, independent of the
           Texas County and District Retirement System. . . .



                           p. 3186
The'Honorable K. D. Hall - page 2         (H-903)


     The Texas Constitution, article 16, section 67, empowers
the Legislature to enact general laws establishing systems
and programs of retirement and related death and disability
benefits for public employees and officers',and it continues in
effect those systems and programs which existed at the time the
constitutional provision was adopted in 1975, subject to the
power of the Legislature to change them. Subsection (c) of the
constitutional provision states in part:
          (c) Local Retirement Systems
             (1) The legislature shall provide by
                 law for:
                      (A) the creation by any city or county
                      of a system of benefits for its officers
                      and employees:
                      (B) a statewide system of benefits for
                      the officers and employees of counties
                      or other political subdivisions of the
                      state in which counties or other political
                      subdivisions may voluntarily participate . . . .
          .   .   .    .

                  (2) Benefits under these systems must be
                      reasonably related to participant tenure
                      and contributions.
     The Texas County and District Retirement System is a
statewide system in which counties may voluntarily participate
-- a system which the constitutional provision continued in
effect. Attorney General Opinion H-604 (1975). Subsection
l(c) of section 3 of article 6228g states that a subdivision
which once elects to participate in the Texas County and District
Retirement System may subsequently elect to discontinue
enrollment of new members, but "shall never discontinue as
to any members."
     Subsection 2 of the same statutory section governs the
participation of employees in the statewide system. In
pertinent part, it says:

                              p. 3787
The Honorable K. D. Hall - page 3   (H-903)


             The membership of the System shall be
          composed as follows:
             (a) All persons who are employees of a
          participating subdivision on the effective
          date of its participation in the.System shall
          become members of the System as of that date;
          provided, however, that this provision shall
          not apply to any of the following persons or
          groups of persons, to wit:

          .   .   .   .

             (2) Employees of any county hospital which
          hospital is governed by the terms and provisions
          of Chapter 5, Title 71, Vernon's Texas Civil
          Statutes, where the commissioners court --
                                                  of the


          not included in the System, the commissioners
          court may thereafter elect to require such
          employees to become members of the System, and
          such employees shall become members of the
          System at the date fixed by the order for their
          participation; the rights and obligations of
          such employees and of the county as employer of
          such persons shall be determined as if such
          county hospital employees were employees of a
          separate subdivision.
              (b) ti person not a member of this System,
          who becomes an employee for the first time of a
          participating subdivision after the effective
          date of participation of such subdivision, shall
          become a member of the System, upon the first
          day     The monthfomwlng   the date such person
          becomes an employee, provided he is then under the
          age of 60 years but any such person who is then
          60 years or over shall not be eligible to become
          a member of this System. (Emphasis added).


                            p. 3788
The Honorable K. D. Hall - page 4 (H-903)


     The provis.ionreferring to hospital employees in sub-
section 2(a) (2) of section 3 was added in 1969. The
legislative history of this amendment makes it clear that
the Legislature intended to permit the commissioners court
to originally exclude hospital employees as a group from
membership in the County and District Retirement System,
but required affirmative action by the commissioners court
in order to preclude such employees from membership. House
Bill No. 1131 of the 61st Legislature as introduced would
have excluded hospital employees from membership "unless
the commissioners court of the county elects to require the
employees of any such hospital to become members of the system."
When the Senate considered the bill, it amended this provision
with the language as it now appears in the Act, which clearly
requires positive action in order to exclude hospital
employees from becoming members.
     It would appear from the facts given us that the hospital
employees automatically became members of the statewide retire-
ment system when they became county employees, since the
county did not originally take action to exclude them,
nor did it subsequently discontinue the enrollment of new members
in the system. Cf. Attorney General Opinion M-520 (1969).
While section 3,subsection 2(a)(2) of article 6228g allows
counties to originally exclude hospital employees from
participation, we do not believe that it was intended to
modify the subsection l(c) prohibition against dropping
members from the system. Thus, if hospital employees have
become members of the Texas County and District Retirement
system, they must remain members.

     In 1975, in anticipation of section 67, article 16 of
the Constitution, the Legislature enacted article 62283,
V.T.C.S., authorizing a county to create (and to contribute
to) a retirement, disability and death benefit system for
its appointive officers and employees if the county voters
approve.
     The county might elect to discontinue the enrollment
of new county hospital employees under subsections l(c) and
2(a)(2) of section 3 of article 622851,and create an article
62283 local retirement system for new employees, but it may
not discontinue membership in the statewide system of the


                         p. 3789
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         ThenHonorable   K.   D. Hall - page 5   (H-903)


         current employees who are already members of the County and
         District Retirement System, even though the employees in
         question may desire not to participate in the system. See
         Attorney General Opinion M-520 (1969). Moreover, those-
         employees who are members of the County and.District Retirement
         System may not receive membership credit from another State
         or county retirement system for the same service.   Tex .
         Const. art. 16, S 67(a) (2).
                                  SUMMARY
                    Employees of a county hospital have
                    automatically become members of the
                    Texas County and District Retirement
                    System when they became county employees,
                    if the county was already a participant in
                    the System and the county commissioners court
                    took no action to exclude hospital employees
                    originally from participation in the System.
                    Hospital employees who have become members
                    of the System must remain members, and
                    cannot receive membership credit from another
                    State or county retirement system for the
                    same service.




        -@PROVED:


                    -1
         DAVID M/ QNDALL,      First Assistant




         Opinion Committee
         jwb
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