                       The Attorney               General of Texas
                                            August    7,   1979
MARK WHITE
Attorney General


                   Honorable Joseph N. Murphy, Jr.      Opinion No. MW-40
                   Executive Director
                   Employees Retirement System of Texas Re: Credit of legislative service
                   P. 0. Box 12337, Capitol Station     for judicial retirement.
                   Austin, Texas 787R

                   Dear Mr. Murphy:

                         You have requested our opinion regarding the crediting of legislative
                   service for judicial retirement. Specifically, you ask whether section 2B of
                   article SZZSb,V.T.C.S., is constitutionaL That statute provides:

                                i2B. The time served in the Legislature of the State
                              of Texas by any judge coming within the purview of
                              this statute shall be credited to the length of judicial
                              service.

                        In Attorney General Cpiiion M-830 (1971),this office, relying on the
                   Supreme  Court’s decision in
                   Retirement System of Texx’

                              ttlhe Legislature may net constitutionally authorize
                              benefits under the Judicial Retirement System to be
                              based in part on services rendered as a member of
                              another retirement system.. . .

                   In light of this opinion, we believe that, at least in 1971,section 2B of article
                   6228b’was unconstitutionab

                         In 1975, however, the voters approved article XVI, section 67, of the
                   Texas Constitution, which, inter alia, authorized the legislature to “enact
                   general laws establishing systems and programs of retirement.. . .” The
                   subsection relating to the Judicial Retirement System now provides, in
                   pertinent part:

                               (d) Notwithstanding any other provision of           this
                               section, the system of retirement, disability,       and
                               survivors’ benefits heretofore established in         the
                               constitution or by law for justices, judges,         and




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    HonorableJoseph N. Murphy,Jr.         -   Page Two       (Hw-40)



                 commissioners of the appellate courts and judges of the district and
                 criminal district courts is continued in effect.. . .

          Attorney General Opinion H-1073 (1977) held that the ratification of article XVI,
    section 67 was sufficient to remove doubt about the constitutionality of a statute which
    permitted the transfer of retirement credit from the County and District Retirement
    System to the Judicial Retirement System. The statute under consideration there,
    however, section LOB(b)of article 1926a, V.T.C.S., had been origiiaRy enacted in 1977,
    subsequent to the ratification of article XVI, section 67. By contrast, the statute at issue
    here, section 2B of article 62284 was enacted in 1969, and has not been amended.

            It is well established that a statute which is

                  forbidden by the Constitution at the time of its passage is
                  absolutely null and void, and is not validated by a subsequent
                  amendment to the Constitution authorizing it to pass such an act.

    State ex reL Rogers v. Swanson, 219 N.W.2d 726, 729 (Neb. 1974). See also Grayson-
    Robinson Stores, Inc. v. Oneida, Ltd., 75 S.E.2d 16l, 163 (Ga. 19531,cert. denied, 346 U.S.
    823 0953); State ex reL Stevenson v. Tufly, 22 P. 1054 (Nev. 1890); Dullam v. Wilson, 19
    N.W. R2 (Mich. %884). To hold that a constitutional amendment is curative of an
    unconstitutional statute

                  would give the amendment the effect of enacting laws instead of
                  merely authorizing the legislature to do so, and it would be to.
                  enact a law to which no reference was made, and which the people
                  in adopting the amendment could.not have had in mind.

    Bonaz v. Smith, 65 P. 309, 310 (CaL 19Ol). Unless the amendment itself specifically
    validates a previously unconstitutional statute, as’in Hutchinson v. Pat&ii& 126SW. 1107
    (Tex. 1910Xthe statute remains void and may be made effective only by reenactment
    Grayson-RobinsonStores, susu at 164. We conclude, therefore, that section 2B of article
    6228b is presently unconstitutionaL Accordingly, legislative service may not be credited
    for purposes of calculating judicial retirement eligibility or benefits.

                                              SUMMARY

                  Section 2B of‘. article 62284 V.T.C.S., which authorized the
                  crediting of legwlative service for purposes of calculating judicial
                  retirement benefits, remains unconstitutional and has not been
                  revived by the ratification of article XVI, section 67 of the Texas
                  Constitution.




                                                @4fG%?&
                                                    Attorney General of Texas




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     Honorable Joseph N. Murphy,Jr.     -   Page Three      (NW-40 1



     JOHN W. FAINTER,JR.
     First Assistant Attorney General

     TED L. HARTLEY
     Executive Assistant Attorney General

     Prepared by Rick Gilpin
     Assistant Attorney General

     APPROVED:
     OPINIONCOMMITTEE

      C. Robert
          .      Heath, Chairman
      Dawd B. Brooks       .
     SusanGarrison
     .Rick Gilpin       ‘~“’  ..
     Harry Green
     William G ,Reid
     Bruce
      :;,Y Yqqblood
                ,~




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