     .   .




                                                   GENERAL.
                                            EXAS




                         October      14,   1969


Honorable   Cus Mutscher                    ~Opinion   No.&490
Speaker
House of Representatives                    Re:    Whether State Employees
State Capitol                                      who are former Leglsla-
Austin,   Texas 78711                              tors can retire   as elec-
                                                   ted officials   under Art.
Dear Sir:                                          6228a,   V.C.S.

         You have requested   our opinion    as to the construction
of  Paragraphs   3E and J+F of Article   6228a,  Vernon's  Civil
Statutes,   which read in part as follows:

         "Subsection    E.

         "Any person who was an Elective            State Offlclal
          and who has served not-less          than eight-(81
          years in the Legislature         of,Texas      (as such
          creditable     service    is defined    in Chapter 524
          Acts of the Regular Session,          58th Legislature
          as amended) may become a member of the Employees
          Retirement     System by paying into such system
          Two Hundred Eighty-Eight         Dollars     ($288) for
          each year of service        in the Leglsiature       of Texas,
          Provided    further,    any such person must make
          application     to become a member and pay In such
          sums prior     to January 1, 1970.         Such application
          shall   be made on forms provided          by the Board,
          and, thereupon,       such person shall       be entitled
          to all t;the privileges      and benefits       of such
          system.      Acts of the 61st Le ., Chap. 114,
          p. 287, 289. (Emphasis added.
         "F . Each appointed      officer    or employee,      as de-
          fined in this Act, who has heretofore             withdrawn
          his contributions      and cancelled      hfsaccurmzlated
          creditable     service  for retirement       purposes,    x,
          if he returns      to State employment and continues
          as such for a period       of five    (5    consecutive
          years,    or If an elective     State,officlal,        upon
          taking the oath of office,         be entitled     to



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Hon.   Qus Mutacher,      page    2 (M-490)




         deposit   in the Retirement    System In a lump
         sum payment the amount withdrawn with a pen-
         alty interest    of two and one half per cent
         (2J$)   Per annum from the date of withdrawal
         to the date of redeposit,      plus any membership
         fees due, and have his creditable         service    re-
         instated    for retirement   purooses....       The
         amounts to be deposited      shall   be determined
         in each case by the Employees Retirement            System
         and In no event shall any such person be
         granted retirement      upon such former service
         credits   until  the amount so determined        shall
         have been paid in full.”       Acts of the 58th
         Leg.,   Chap. 524, p. 1372, 1376. (Emphasis
         added. )

          Section    4F is a part of Chapter 524, Acts of _the _
58th Leg.,      1963, page 1372.          As this     section   existed    prior
to 1969, it had already made a distinctionbetween                       the two
classes    of persons       composing the membership of the Employees
Retirement      System.      The first      class   Is composed of “apvolnt-
ive officers      or employees”,         and the second class         is corn;
priaed of “elected          officials”.        The substance     of this sec-
tion,    ae enacted in Its present             form in 1963, required         a
five-year     period      of work on return to the system for those
In the first      class     who returned       to the system as an ap-
pointlve    officer       or employee,      but waived this period         a~8
to the elected       officials        comprising    the second class       of
members.      Section      4F is neither       applicable     nor relevant
to the question         asked,     for the reason that it speaks solely
to a former employee or official                 “who has heretofore       with-
drawn his contributions              and cancelled     his accumulated       credit-
able service..      . .‘I

         J3y the 1969 amendment of Section           3E, the Leglsla-
ture provided     that any former legislator           with eight years
past legislative      service     may become a member of the Rm-
ployees    Retirement    System as a part of the elected            class   by
paying certain      moneys into the fund.          This inclusion      Is
reasonable     so long as the former Legislator             seeking   to be-
come a part of the elected           class    Is employed by the State
of Texas at the time he elects             to pay his money and to join
the class    of “elected     officials”       under the hnployees       Re-
tirement    System.    Attorney      General Opinion M-413 (1969)
concluded    that it would violate           the Constitution     to allow




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Hon.   Gus Mutscher,     page 3 (M-490)




this membership or to credit   prior service to leglsla-
tors,   except when the person is employed by the State
at the time he seeks to invoke the benefits   of the Rm-
ployees   Retirement System.

        Another limitation   on the 3E elective    membership
is that application    to the Employees Retirement    System
must be made "prior    to January 1, 1970";   consequently
December 31, 1969, is the laet day for these applications
to be made under the new law,

          This inclusion  by the Legislature   of former mem-
bers thereof    who are now in State employment when they
apply to be a part of the elective       class is a reasonable
classification     under Article XVI, Sec. 62, Constitution
of Texas.

           We must presume that the Legislature's            classlfica-
tion is valid and reasonable.              12 Tex. Jur.2d,    460, Con-
stitutional       Iaw, Sec. 112.       We cannot say that It Is dis-
criminatory       as between other classes         of membership,     since
there are material         differences      In the nature of duties,
responslbllitles,         and service     which distinguish     elected
officials,      including     former members of the Legislature,
from employees and appointed            officials.     The test of rea-
sonableness       as prescribed      by the courts    has been stated
as follows:

              . . ..the test for determining   its
              reasonableness    Is whether there is
              any basis for the classification
              which could have seemed reasonable
              to the legislature.

             "In order to be valid,        a statutory
              classification       must reasonably     pro-
              mote some proper object         of public
              welfare     or interest,    must rest on
              real and substantial        relation   to the
              subject     of the legislation,      and must
              affect    all persons or things within
              a particular      class,  or similarly
              situated."     12 Tex. Jur.2d 459, Con-
              stitutional      Law, Sec. 111, and cases
              there cited."




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                                                                         .




Hon.   Gus Mutscher,       page   4(M-490)




          In view of the foregoing,       it Is our opinion        that the
statutory    provisions   and requirements         are non-discriminatory,
reasonable,     valid,  and constitutional,         and former members
of the Legislature      with the requisite         eight years leglsla-
tive service     are not required     to comply with a five-year
employment requirement      upon returning         to the Employees Re-
tirement    System (as do appointlve        officials     and employees)
in order to obtain membership qualification               as elected    of-
ficials.

                                  SUMMARY'

            Section    3E of Article     6228a,    Vernon's    Civil
            Statutes,    allows one who qualifies          by reason
            of at least eight years past legislative
            service    and who is now in State employment,
            to become a member in the "elective             class”
            of the Employees Retirement           Syetem without
            working five consecutive          years.    Section    4F
            of Article    6228a,    supra,    the five-year     pro-
            vision,    is not applicable       to such members.
            The provision     In Section      3E allowing    member-
            ship In the "elected        class"    to those employees
            with prior    legislative      service    and present
            state employment is reasonable            under Article
            XVI, Sec. 62, Constitution          of Texas.




                                                  eneral   of   Texas

Prepared      by Roger Tyler
Assistant      Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor,   Chairman
George Kelton,    Co-Chairman
John Hanks
Sarah E. Phillips
Houghton Hrownlee
Bob Flowers
Louis G. Neumann



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Hon.   Gus Mutscher,   page     5(M-490)




MHADEF. GRIFFIN
Staff Legal Advisor

HAWTHORNE PHILLIPS
Executive Assistant

NOLA WHITE
First Assistant




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