                                                                      45
                              OFFICE         OF

                 THEATTORNEYGENERAL
                            Avsrm,      TEXAS

pRICE DANIEL
*moRNEYGENERAL                January 22, 1948

       Mr. Gordon Ii.Lloyd,            opinion No. v-480
       Executive Secretary,
       Employees Retirement System,    Re:   Eligibility of employ-
       Aus tin, Texes                        ees of the State Bar
                                             of Texas to be mem-
                                             bers of the Rmplogees
                                             Retirement System.
       Dear Mr. Lloyd:
                 Your recent request for an opinion of this de-
       partment Is as follows:
                 "Please advise if, in your opinion, the
            employees of the State Bar of Texas are eli-
            gible for membership with the Rmployees Re-
            tirement System."
                 Section 62(a) of Article 16 of the State Con-
       stitution provides, In part, that:
                 "The Legislature shall have the right
            to levy taxes to provide a Retirement, Dis-
            ebilltr and Death Comoensatlon Fund for the
            appoinkve officers and employees of the
            State: . . ,.."(Emphasis added throughout)
                 The Act passed by the 50th Leglsleture to car-
       ry Section 62(a) of Article 16 of the Constitution into
       effect is Article 62288~of Vernon's Civil Statutes. Per-
       tinent provisions of the Act are as follows:'
                  "Section 1 . . .
                      "B. 'Department' shall mean any
            department, commission, institution, or -
                                                    a-
            gency of the State Government.
                      "C. 'Rmployee' shall mean any
            regularly appointed officer or employee
            in a department of the State who is em-
            ployed on a basis or in a position normal-
            'Ig requiring not less than nine hundred
46
     Mr. Gordon H. Lloyd,,page 2   (8-480)


          (900) hours per year, but shall'xiotin-
          clude members of the State Leglsxature or
          any.ticumbent of an office normally filled
          by vote of the people; nor persons on piece-
          work basis; nor operators of equipment or
          drivers of teams whose wages are included
          in rental value paid the owners of said
          equipment or team; nor any person who is
          covered by the Teacher Retirement System
          of the State of Texas or any retirement
          system supported with State funds other
          than the Texas Employees Retirement Sys-
          tem.
                    "D. 'Employer' shall mean the
          State of Texas.
               "Sec. 3. The membership of said Re-
          tirement System shall be composed as fol-
          lows:
                    "A. All persons who are employ-
          ees on the date as of which the Retirement
          System is established shall become members
          as of that date as a condition of their em-
                nt unless within a period of ninety
          pi:Eays   after September 1, 1947, any such
          employee shall file with the State Board of.
          Trustees on a form prescrlbed$y such Board,
          a notice of his election not to be covered
          in the membership of the System and a duly
          executed waiver of all present and pros-
          pective,beneflts~whi.chwould otherwise inure
          to him on account of his participation in
          the Retirement System. The following per-
          sons shall, however, not be eligible for
          participation in the Retirement System:
               “1. Members of the State Legislature
          or any incumbent of an office normally fill-
          ed by-a vote of the people, nor any person
          who is covered by the Teachers Retirement
          System or any retirement system supported
          with Stat&funds othe5 than the Texas Rm-
          ployees Retirement System.
               '2. Persons employed'on a piecework
          basis or operators of equipment or drivers
          of teams whose wages are included in the
Mr. Cordon R. Lloyd, page 3   .(V-480)



     rental rate paid the owners of said equip-       ~:,:
     ment,or team.
        1 "3 . Duployees who'are employed less
     than nine hundred (900) hour8 per year.
                "B. Any person who beoone.8an
      employee on or after the date of establish-
      ment oftthe System she.11,upon the comple-
      tion of nine (9) months of,continuous ser-
      vice uninterrupted by a break of more than
      one month, becomesa member of the System
      as a condition of employment, provided said
      person 18 less than Sixty (60) years of a e
      at the time of completion of said nine (9'f
     months of service. . . .'
           _
           We quote the.followlng from the State Bar Act,
.Article ;320a-1,Vernon'8 Civil Statutes:
          'Sec. 2.  There is hereby created the
     StatesBpr, which isherebg~ Constituted an  .~
     administrative agency of.the Judicial De-
       rtment of.the State, with power to con-
                            its own affairs and
     which may sue a~ndbe sued and have such
     other powers as are reasonebly necessary
     to carry out the purposes of.this Act.
         :"Se&. 4;, Within six (6) months from.
     the,effectlve date of.thls Act, and from
     time to timesthereafter, as to the Courts
     may,seem proper, the Supreme Court of Texes
     shall prepare and.propose rules and regula- '
     tions v . .,for the conduct of the State
     Bar .~. . .
          "The-Supreme ~Court is further empow-
     ered.and.it shall be its ,duty to rescribe
     fees not exceeding Four Dollars ($ 4) per
     annum per.per8on't.obe paid to the Clerk
     of the Supreme Court to.be held by him and
     expended by the Courtor under its dlrec-
     tion for the purpose of the administration
     of this Act . . .'
          The State Bar is'an agency of the Judicial De-
eartment of the State Government. It is, therefore, a
 department.!within the terms of the Act creating the
48   Mr. Cordon II.Lloyd, page 4   (v-480)


     Employment Retirement.System of Texas. The employees of
     the State Bar, then, are "employees" of the State under
     the Act unless specifically excluded Under the deflni-
     tion of "employee". We find nothing in that definition
     keeping them, as a class, from being "employees". We
     are of the opinion that employees of the State Bar are
     eligible for membership with the Bnployees Retirement
     System if they come withln the provision8 of~Section 3,
     Subsection A of the Act, supra, and are not specifical-
     ly excluded thereby. They are not specifIcalLy exclud-
     ed. Further, we are of the opinion that all employees
     of'~theState before the date of the establishment of the
     System (September-l, 1947), unless excluded from member-
     sh$p by Seation 3, Subseotion A, were not only eligible
     for membership but were automaticelly taken into the
     membership of the System UnleSS~Within'a'period of nine-
     ty (90) days 8fter September 1; 194.7,such employees fil-
     ed with the State Board of Trustees notices of their
     election not to be covered in the membership and waivers
     of all benefits which would otherwise inure to them by
     participation in the Retirement System. With reference
     to persons becoming State Employees on or after the date
     of the establishment of'the System, see Section 3, Sub-
     seotion B, Article 6228a,,Vernon's Civil Statutes, su-
     pra.
               Although the funds from which employees of the
     State Bar are paid are State funds, they are not adminis-
     tered through the State Treasury and the State Comptrol-
     ler's office. In 8UCh an instance, the k@SlatuFe    ha8
     made no provision, within the teems of the Retirement
     Act, for contributions of the State in order to mstch
     contributions of such employees. It i8 OUP OpiIIiOnthat
     the lack of such a provision at the present time does
     not exclude an otherwise qualified employee from member-
     ship in the System. Ro person who has met the qualifi-
     cations of an "employee" under the terms of the Retire-
     ment Act is precluded from memberstip in the Retirement
     System because the Legislature ha8 not yet specified the
     mechanics to be used In making all of the contributions
     of the State in matching the coxlbutions   of employees.
     In reaching this conclusion we reaffirm the conclusion
     reached in Opinion V-336, but modify the language used
     therein so as to conform to the view expressed jn this
     paragraph.
                            SliMMARY
               The State Bar of Texas, by the terms
                                                       49
Mr.   Gordon H. Lloyd, page 5   (v-480)


      of Section 2, Article 3208-l,,Vernon's
      Civil Statutes, is sn "agency of the'Judi-
      cial Department of the State:, and is,
      therefore, an "agency of the Sta.teGovern-
      ment" within the provisions of Article
      6228a, Vernon's Civil Statutes. Its ,em-
      ployees, if otherwise qualified, are eli-
      gible for membership in the Employees Re-
      tirement System.
                                Yours very truly
                           ATTORNEY GERERAL OF TEXAS



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