   OFFICE   OF THE    ATTORNEY   GF.NERAL   STATE   OF TEXAS

   JOHN      CORNYN




                                                    March 31,1999




The Honorable Ron Lewis                                        Opinion No. K-0027
Chair, Energy Resources Committee
Texas House of Representatives                                 Re: Construction of section 814.1041 of the
P.O. Box 2910                                                  Government      Code, which provides       for a
Austin, Texas 787682910                                        “temporary     service retirement   option” for
                                                               certain state employees    (RQ-I 115)


Dear Representative        Lewis:

         You ask whether the Employees Retirement System of Texas (“ERS”) has correctly
interpreted section 814.1041 of the Government Code, which provides a temporary service
retirement option for certain state employees affected by privatization or other reductions in the
workforce.    The ERS is correct in applying section 814.1041(b) only to an employee who is not
eligible to retire under section 814.104(a) of the Government Code when his or her position is
eliminated. The ERS rule providing that amember ofthe affected employee class who is not eligible
to retire without the age and service supplement will receive only the minimum service credit
necessary to meet eligibility is inconsistent with the statute and is therefore invalid.

        Eligibility for retirement is ordinarily determined according to section 814.104(a) of the
Government Code, which states, with certain exceptions, that a member with service credit in the
ERS is eligible to retire and receive a service retirement annuity “if the member is at least 60 years
old and has 5 years of service credit in the employee class” or “if the sum of the member’s age and
amount of service credit in the employee class, including months of age and credit, equals the
number 80.” TEX. GOV’T CODE ANN. 5 814.104(a) (Vernon Supp. 1999). Section 814.1041
provides for eligibility under different circumstances:

                     (a) This section applies only to members of the employee class
                 whose positions with the Texas Workforce Commission, the Texas
                 Department of Human Services, or the Texas Department of Mental
                 Health and Mental Retardation 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
The Honorable   Ron Lewis - Page 2                  (X-0027)




                credit, each increased by three years, would meet age and service
                requirements for service retirement under Section 8 14.104(a) at the
                time the member separates from state service as described by
                Subsection (a). The annuity of a person who retires under this
                subsection is computed on the person’s accrued service credit
                increased by three years. (Emphasis added.)

                     (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.

Id. 5 814,1041(a)-(c). These provisions, adopted by the 75th Legislature,’ apply “only to positions
eliminated by privatization or other reductions in workforce before September 1, 1999.” Id. 5
814.1041(f).

        Yourquestionrelates  to the following interpretations           ofsection   814.1041(b) adoptedby   ERS
in implementing this provision:

                     1. A member of the affected employee class who is otherwise
                eligible to retire without the addition ofthree years to age and service
                credit will receive no additional years of service credit in computing
                the member’s annuity;

                     2. A member of the affected employee class who is not eligible
                to retire without the age and service supplement will receive only the
                minimum service credit necessary to meet eligibility.

Letter from Honorable Ron Lewis, State Representative, to Honorable Dan Morales, Attorney
General (Mar. 17, 1998) (on tile with Opinion Committee).            You are concerned that these
interpretations are inconsistent with the statute, the purpose of which, you assert, is to lessen the
adverse impact of privatization by providing additional benefits to the affected employee class.
Specifically, you ask whether the ERS has correctly interpreted and applied section 814.1041(b),
“taking into consideration the legislative history, the written provisions enacted, and the adverse
impact on the older members of the employee class.” Id. at 2.


        ‘Act of May 28, 1991,75th Leg., R.S., ch.   1048,§     13, 1991 Tex. Gen. Laws 3986,3989.
The Honorable   Ron Lewis    - Page 3          (X-0027)




        At the outset, we note that we cannot evaluate the impact of the ERS interpretations on older
members of the employee class. This involves questions of fact, which cannot be addressed in an
attorney general opinion. Nor can we address your concern that the ERS interpretations may raise
an issue of age discrimination under the federal Age Discrimination in Employment Act of 1967,
29U.S.C. $5 621-34 (1994). SeeTex. Att’y Gen. Op. No. DM-154(1992) (summarizingprovisions
of Age Discrimination in Employment Act of 1967). Whether a particular application of section
8 14.104 1(b) as interpreted by ERS is consistent with the federal act involves questions of fact, which
cannot be resolved in an attorney general opinion. See Tex. Att’y Gen. Op. No. DM-158 (1992) at
2-3 (discussing the federal Civil Rights Act of 1964 and stating that opinion process cannot answer
fact questions relating to federal act).

       In response to your request, the ERS confirms your description of its interpretation   of section
814.1041(b). ERS further states:

                We believe that Tex. Gov’t Code Ann. $814.1041(b) does not apply
                at all to employees who are otherwise eligible to retire at the time of
                the privatization.  In addition, if an employee does become eligible
                for retirement by virtue of the 3 + 3 feature, the employee’s annuity
                is calculated by increasing the employee’s service credit only by the
                amount needed for the employee to become eligible to retire.

Letter Brief from William S. Nail, Deputy Executive Director & General Counsel, ERS, to
Sarah J. Shirley, Office of the Attorney General (May 11,1998) (on tile with Opinion Committee).
The ERS rule implementing         section 814.1041 of the Government Code incorporates these
interpretations:

                    (c) To be eligible for benefits under 4 814.1041(b) or 3
                8 14.1041(c), the member’s age and service at the time of separation
                     must not otherwise qualify the member for service retirement
                benefits.   . Service creditable under 5 814.1041(b) for age and
                service shall be in equal increments not to exceed the maximum of
                three years of service and three years of age. For a member retiring
                under the provisions of 8 814.104(a), only the amount of age or
                service credit needed for eligibility shall be added.

34 TEX. ADMIN. CODE5 73.41(c) (1998).

          We first consider whether section 814.1041(b) applies only to persons who would be
ineligible to retire without the increase in age and service credit it provides. In addressing your
questions, we begin with the relevant language of section 814,1041(b):

                     (b) A member described by Subsection (a) is eligible to retire and
                receive a service retirement annuity ifthe member’s age and service
TheHonorableRonLewis            - Page 4            (X-0027)




                  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). (Emphasis added.)

TEX. GOV’T     CODE   ANN. 5 814.1041(b) (Vernon Supp. 1999).

         We believe that the legislative history of this bill supports the ERS construction of section
814.1041(b) as to the class of employees it benefits. See id. 5 311.023(3) (Vernon 1998) (in
construing a statute, a court may consider legislative history, among other matters). This provision
was adopted by Senate Bill 1102 of the 75th Legislature,’ which made various changes in the statutes
governing the ERS. The bill analysis on Senate Bill 1102 prepared for the House Pensions and
Investments Committee describes this provision as follows:

                  Adds a new section 8 14.1041 to provide service retirement option for
                  employees of .         [certain state agencies] whose positions are
                  eliminated as a result of privatization.

                  Two options are provided. One allows members whose positions are
                  eliminated to retire upon separation if adding 3 years of age and 3
                  years of service credit makes them eligible for retirement
                  [Discussion of second option (5 814.1041(c))].’




The Fiscal Note to Senate Bill 1102 states:

                  Among the changes that will have an actuarial impact are . earlier
                  retirement eligibility for certain employees of the Texas Workforce
                  Commission, the Texas Department of Mental Health and Mental
                  Retardation and the Texas Department of Human Services        !

         Section 814.1041(b) provides earlier retirement eligibility for persons whose positions were
eliminated. Earlier retirement eligibility is not meaningful for persons already eligible to retire-the
time for early retirement has already passed. It can apply only to persons who are ineligible to retire
without the increments in years of age and service credits allowed by section 8 14.1041(b). Moreover,



          2A~t of May 28, 1997,7Sth Leg., RX,   ch. 1048,s   13.1997 Tex. Gen. Laws 3986.3989


          ‘HOUSE PENSlONS& ltWESTMENTSCOMM., BILL ANALYSIS, Comm. Substitute S.B. 1102, 75th Leg., R.S.
(1997).


          ‘FISCAL NOTE, Tex. S.B. 1102,75th Leg., R.S. (1997)
The Honorable    Ron Lewis    - Page 5         (X-0027)




neither the bill analysis nor the fiscal note suggests that the enactment will affect the benefits of
persons eligible to retire under existing law. Accordingly, ERS has, in our opinion, correctly
determined that section 8 14.1041(b) does not apply to employees who are otherwise eligible to retire
without the addition of three years to age and service credit.

         We address the second ERS interpretation that you question: that a member of the affected
employee class who is not eligible to retire without the age and service supplements will receive only
the minimum service credit necessary to meet eligibility. We conclude that the ERS interpretation
is incorrect, because it is contrary to the plain language of the statute.

          Section 814.1041(b) provides that certain employees are eligible to retire “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 statute plainly states that the age and service credit are each to be
“increased by three years,” not merely by the minimum amount of age or service credit needed for
eligibility. In addition, “[tlhe annuity of a person who retires under this subsection is computed on
the person’s accrued service credit increased by three years.” Id. § 8 14.1041(b) (Vernon Supp. 1999)
(emphasis added).

       The bill analysis     to Senate Bill 1102 also states that the option provided           by section
814.1041(b)

                 allows members whose positions are eliminated to retire upon
                 separation zfadding 3 years of age and 3 years of service credit makes
                 them eligible for retirement with theadditionalservice  credit counting
                for purposes of computing an annuity.5

         Both section 814.1041(b) and its description in the bill analysis plainly state that three years
are to be added to age and service credit ofpersons affected by that provision and that the three years
of additional service credit will count for purposes of computing an annuity. ERS points out that this
construction magnifies the differences between persons who benefit from section 814,1041(b) and
persons who are eligible to retire aside from that provision. For example, a person who needs only
one month of service to be eligible to retire would receive an additional two years and eleven months
of service in calculating his or her annuity, while a person terminated due to privatization one month
after becoming eligible for retirement would not receive any additional service credit. While we
acknowledge this difficulty with section 814.1041(b), we cannot disregard its literal meaning.

         The ERS has submitted a letter from the primary sponsors of Senate Bill 1102 stating that “it
was the intent that the annuity of a person retiring under Section 814.1041(b) be computed by
increasing a person’s service credit only by the amount needed by that person to become eligible


          %4OUSEPENSlONS
                       & ,N"ESTMENTSCOMM.,B~LLANALYSIS,CO~~.S~~~~~~~~~          S.B.l102,75tb    Leg.,R.S.
(1997).
The Honorable   Ron Lewis - Page 6             (X-0027)




for retirement.”      Letter from Senator Ken Armbrister & Representative             Barry Telford, to
Ms. Sheila W. Beckett, Executive Director, ERS, (July 15,1997) (on file with Opinion Committee).
In interpreting statutes, the courts “seek to effectuate the ‘collective’ intent or purpose of the
legislators who enacted the legislation.” Boykin V. State, 818 S.W.2d 782, 785 (Tex. Crim. App.
1991) (en bane) (citation omitted). To accomplish this, it necessarily focuses its attention on the
literal text of the statute. Id.; Tex. Att’y Gen. LO-95-085, at 7, n 4. “[Tlhe intent of an individual
legislator, even a statute’s principal author, is not legislative history controlling the construction to
be given a statute.” General Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 923 (Tex. 1993).
Accordingly, post-enactment statements by legislators are not evidence of legislative intent. Regional
RailReorganization      Act Cases, 419 U.S. 102,132 (1974); Tex. Att’y Gen. Op. No. DM-321 (1995)
at 1-2, n. 1.

         The provision of the ERS rule limiting to less than three years the additional years of age and
service credit granted under section 814.1041(b) is inconsistent with the statute and therefore invalid.
Sharp v. House oflloyd, Inc. 815 S.W.2d245,247-48        (Tex. 1991) (comptrollercouldnotpromulgate
rule that was contrary to the plain language of the statute).
The Honorable   Ron Lewis    - Page 7           (X-0027)




                                        SUMMARY

                     Section 814.1041 of the Government Code provides a temporary
                service retirement option under the Employees Retirement System of
                Texas for employees of certain state agencies whose positions are
                eliminated because of privatization or other reductions in workforce.
                Section 814.1041(b) provides that an employee 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 the requirements of
                section 8 14.104(a) of the Government Code, the general provision for
                retirement. Section 814.1041(b) applies only to an employee who is
                not eligible to retire under section 8 14.104(a) ofthe Government Code
                when his or her position is eliminated.

                    The service annuity of a person who retires under section
                814.1041(b) is computed on the person’s accrued service credit
                increased by three years. The ERS rule providing that a member of the
                affected employee class who is not eligible to retire without the age
                and service supplement will receive only the minimum service credit
                necessary to meet eligibility is inconsistent with the statute and is
                therefore invalid.



                                                 Yo       s very truly,.



                                            4~c
                                            L

                                                 JO$N
                                                      -

                                                          CORbYN
                                                                 G-Tr

                                                 Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General
