                       August 209 1969

Honorable Gordon H. Lloyd
Executive Secretary
Board of Trustees
Employees Retfrement System of Texaa
Capitol Station
Austin, Texas 78711                 Opfnfon No. M-450
                                      Reg   Constitutionality of
                                            allowing credit time
                                            for certain Military
                                            Service under Art.
                                            6228a,  V.C.S., per-
                                            formed prior to state
                                            employment (H.B. 1065,
                                            Chap. 814, page 2433,
                                            Acts of 61st Leg.,
                                            1969 1.
Dear Mr. Lloyd:
       On September 1, 1969, House Bill No. 1065, Chapter 814,
Acts of the 61st Legislature, Regular Session, page 2433, will
become a law. Your Board of Trustees of the Employees Retlre-
ment System of Texas has requested an opinion concerning the
constitutlonalfty and application of House Bill 1065.
       From consideration of the above requests you desire the
answer to two questiona:
       1.   Whether it fa constltutfonal for the Legis-
            lature  to provide that members of the Em-
            ployees Retirement System receive credit
            for retirement servfeep for time spent as
            a member of the mflftary service, during
            the time the United States was or fs in-
            volved fn organized conflict, whether fn
            a state of war or a police action lnvolv-
            ing conflict with foreign forces, or for
            reason of criefs within this country.


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Hon. Oordon Ii. Lloyd, page 2(M-450)


       2.   What members of the Employees Retfrement
            System are excluded from recefvfng credit
            for mflftary servfce under House Bfll No.
            1065%
       In answer to your ffrst question, we hold ttia't'it,
                                                         is
constitutional for the Legfslature to provide that members of
the &ployees Ret%rement System recefve credit for retire-
ment services for tfme spent a8 a member of the military ser-'
vice, as set forth in House Bill 1065.
       Article XVX, Sectfon 62, Texas Constitution (adopted
Nov. 8, 1966) reads, in part, as follows:
      "(a) The Legislature shall have the authority
       to levy taxes to provide a State Retirement,
       Msabflity and Death Compensation Fund for
       the officers and employees of the State, and
       may make such reasonable fnclusions, or classi-'
       fications of officers and employees of this
       State as It deema advisable.
       House Bfll 1065 is a reasonable inclusion of a class
of state employees or officials who have served their state
and nation fn the mflitary service prfor to befng employed by
the state,
       We hold that the Legfelature may legally allow credit
to members of the Employees Ret%rement System for prior m%l%-
tary service because it serves a beneficent and useful govern-
mental function and stfmulates and rewards fafthful public
service. See reasonfng fn Attorney General's Opinions M-138
(1967), M-408 (1969), and M-413 (1969). Furthermore, the
Legislature in House B%ll 1065 found that such Bfll, In p.ro-
vlding credft for prfor m%l%tary servfce was for a publfc pur-
pose, as it stated fn the Emergency Clause "that the provi-
sions of this Act w%Pl provfde the State wfth more experienced
personnel and wfll fnduce continued servfee to the State,:.,'
As is outlined fn the above cfted Attorney General's opinion's,
a statute such a8 R.B. 1065, serves a beneffcent and useful
governmental functfon $n its propensfty for stimulating and
rewarding faithful publfc servfees. As stated above, the
Legislature found that aafd B%l% was for a publfc purpose. The
determination of publfc purpose fs prfmarfly a legislatfve
function and will not be reversed unless manffestly arbitrary.


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Hon. Gordon H. Lloyd, page 3 (M-450)


The fact that individuals are benefiltedfrom funds expended
therefor is immaterial. See Attorney General Opinions Nos.
M-391  (1969) and C-530 (1965). Thus prospectively applied,
the Act is not fn violation of Article I, Sectfon 16 or
Sections 44, 51, or 53 of Article III, Constitution of Texas.
It does not fnvolve a gift for private or Individual pur-
poses. A sfmilar statutory amendment providing for such
military service credft for teachers retirement was enacted
in 1961 (Article 2922-1, Section 4, Vernon's Civil Statutes)
and has been allowed by the Trustees of the Teachers Retire-
ment System since that time.
        In view of the settled rule that all doubts as to con-
stitutionality are resolved In favor of the statute, we con-
clude that it is constitutional. 53 Tex. Jur.2d 277, Statutes,
Sec. 184.
       As to the second question of what members of the Em-
ployeesRet%rement System are excluded from receiving credit
for military service, Section 2, of H.B. 1065, supras sub-
section (c) reads as follows:

      “(Cl   Notwithstanding any other provision here-
             in, no person, otherwise eligible for cre-
             dit for mllftary service herein, shall be
             eligible to such credit if such person
             shall be receiving or hereafter receives
             any military retirement provided by any
             federal law or regulation or federal re-
             tirement act, for at least 20 years ac-
             tive duty.’ (Emphasis added. )
       Those members of the Fmployees Retirement System who re-
ceive OP hereafter receive any military retirement from the
Federal Government, for at least 20 years active duty as a mem-
ber of the Armed Forces of the Unfted States (as distinguished
from the members of the Reserve Forces of the United States
or National Guard) are excluded from receiving credit for mili-
tary service, and th%s exclusion is a reasonable exclusion
under the provisions of Article XVI, Section 62, Texas Consti-
tution. Our reasoning as to this conclusion Is baatd on the
use of the words "for at least 20 years active duty in sub-
section (c) of H-B. 1065. "Active duty" connotes full-time
service as a professfonal member of the military forces of the



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Hon. Gordon H. Lloyd, page 4 (M-450)



Fedesal Government, while service In a Reserve or National
Guard component Involves only limited active duty periods
during summer camps, service schools, drill days and similar
periods of active duty training. 10 U.S.C.A. 1333. Under
H.B. 1065, persons who have been or are relieved from ac-
tive duty by a dishonorable discharge are also excluded from
receiving credit for military service.

                             SUMMARY
            H.B. 1065, Chapter 814, page 2433, Acts
            of the Regular Session, 61et Leg.,    1969,
            la constitutional, and allows credit for
            retirement service for military service
            prior to state employment, for members
            of the Rnployees Retirement System of the
            State of Texas. This statute  validly   per-
            mits members of the Rmployees Retirement
            System to receive credit for retirement
            service for service in the military for-
            ces as set forth in H.B. 1065. Those
            members of the Employees Retirement Sys-
            tem who receive or hereafter receive any
            military retirement from the Federal
            Government, for at least 20 years active
            duty as a member of the Armed Forces of
            the United States (as dlstlnqulshed from
            the members of the Reserve Forces of the
            United States or National Guard) are ex-
            cluded from receiving credit for military
            service. Under H.B. 1065, persons who
            have been or are relieved from active
            military duty by a dishonorable discharge
            are also excluded from             credit
            for military service.




                                                eneral of Texas

Prepared by Roger Tyler
Assistant Attorney General




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    Hon. Gordon H. Lloyd, page 5 (M-450)




    APPROVED:
    OPINION COMMITTEE
    Kerns Taylor, Chairman
    George Kelton, Vice-Chairman
    Houghton Brownlee
    Harold Kennedy
    Neil Willlams
    IQU%S Neumann
        W. V. GEPPERT
        Staff Legal Assistant
    HAWTHORNE PHILUPS
    Executive Assistant




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