                         E                NEY       GENERAL
                                         TEXAS
                             AUSTXN      TEXAS   78711
CRAWFORD    c. MAR-rlN                 N'ovember25, 196,9



       Mr. Gordon Lloyd
       Executive Secretary
       Employees Retirement System
       Capitol Station
       Austin, Texas
                                       Opinion    NO.   M-515
                                       Re:     Section 3E of the
                                               Act governing the
                                               Employees Retirement
       Dear Mr. Lloyd:                         System
              You have recently requested of this office an Attorney
       General's Opinion with respect to certain aspects of the h-
       ployees Retirement System which you administer. We under-
                  you are presently concerned with implementin .Sec-
       ;::;"dy    added to the Act as a new subsection by the E1st
       Legislature, Regular Session, 1969, as construed in Attorney
       General Opinions No. M-413 (1969) and No. M-490 (1969).
              Section 3E reads as follows:
                  "Subsection E.,
                  "Any person who was an Elective State
                   Official and who,has served not less
                   than eight (8) years in the Legisla-
                   ture of Texas (as such credltable ser-
                   vice is defined in Chapter 524,Acts of
                   the Regular Session, 58th Legislature

       1/ All references in this opinion to section numbers or to
          subdivisions of a section, unless otherwise indicated, are
          to Chapter 352, Acts of the 50th Legislature, Regular Ses-
          sion, 1947, as amended by Chapter 524, Acts of the 58th
          Legislature, R.S., 1963, last amended by Chapter 113, p.287,
          Acts of the 61st Le islature, Regular Session, 1969, codi-
          fied as Article 622%a, Vernon's Civil Statutes.




                                      -2458-
Mr.   Gordon Lloyd, page 2    (M-515)


            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 Legislature 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 en-
            titled to all the privileges and bene-
            fits of such system."
       Attorney General Opinion No. M-413 holds that Section
3E is constitutional as it applies to a person who Is serv-
ing the State as an officer or employee at the time he seeks
to become a member of the System and avai~lhimself of credit
for past legislative service, but unconstitutional as It
applies to a person not so serving.
       The question then arises as to when a person eligible
under 3E becomes a member. Section 3C,Is appl1cabJ.eto a.:'
person seeking membership under Section 3E; hence, an appll-
cant otherwise qualified for membership under Section 3E as
interpreted by Opinions M-413 and M-490 becomes a member of
the system as of the first day of the month in which he com-
mences to serve the State as an appointive officer or em-
ployee, or 'in" the month in which he takes the oath of office
if elected or aouolnted to an elective office. If such holder
of an elective b'rficeelects to become a member, conditioned
that for the purpose of becoming a member eligible for the
benefits available under Section 3E he must make the-appll-
cation and uas the sum reauired under that section prior to
January 1, i9iO. Section-3E provides that application for
membership shall be made on forms provided by the Board,
but we are of the opinion that a person otherwise eligible
may become a member upon tender of the required sum if he.has
been unable after a good faith effort to obtain forms from
the Board.
       You have also   Inquired as to the length of time a per-
son must serve as an   officer or employee of the State In
order to qualify for   membership under Section 33. The Legls-
lature Is completely   silent on this question, and this office
is without authority   to supply language and say that a person




                             -2459-
Mr. Gordon Lloyd, page 3 (M-515)


must so serve for any specific period of time. For your guld-
ante, we do affirmatively hold that an applicant otherwise
eligible would satisfy the membership condition If he com-
menced serving as an officer or employee prior to December
1, 1969 and continued to so serve at least through December
31, 1969, or if he commenced serving as an officer or em-
ployee at any time prior to January 1, 1970, and continued
to so serve at least through January 31, 1970. In either
event he would have become a member prior to January 1, 1970,
under the provisions of 3C discussed above, and the System
would be able to set up his record and credit him with a
payroll contribution. In the latter case he might not be-
gin to accrue additional service credit until January 1,
1970, but Section 3C operates to make him a member prior to
that date.
       The next question concerns the nature of the rights
acquired under Section 3E. In this connection we call your
attention to the fact that Opinions M-413 and M-490 speak
solely to the narrow subject of a particular type of credl-
table service for which application and payment must be
made within a limited time. Nothing In either of those opin-’
ions governs any form of creditable service other than the
Legislative service specifically provided for in Section 3E.
       Opinion No. M-490 holds that an eligible applicant
for membership under Section 3E becomes a member of the
“elective class”. The term “elective class” is used in
that opinion solely to characterize the nature of the bene-
fits to which the person becomes entitled. As provided in
the last sentence of Section 3E, once a person becomes a
member of the System under that section, he has a vested
right In the benefits payable to a former Legislator under
the Act by virtue of his prior service as a I.egislator. The
term refers to the specific t;yDeof ‘creditable service” to
which he Is entitled, and thereby determines the rate at
which his benefits will be calculated to the extent that
his benefits are based upon his prior service as a Lenis-
lator.
       For the very reason that the Legislature has provided
a special procedure whereby a former Legislator may purchase
credit for a sueclal tyue of prior service, I.e., legisla-
tive service, we have herd under Opinion M-490 that the
Legislature has not required a member under Section 3E to




                        -2460-
                                                       .




Mr. Cordon Lloyd, page 4    (M-515)


serve five years before he may purchase that type of prior
service credit. Another indication of Legislative Intent
is that
      _ it would
             ^. be clearly
                       .    impossible for a Legislator
returning to state service to serve five years before
January 1, 1970.
       Note that Section 3E makes no provision for the @ur-
chase or transfer of any type of creditable service other
than prior Legislative service. Credit could be allowed a,
person coming into the System under Section 3E for any other
type of creditable service only In conformity with other
provisions of the Act and with established administrative
procedure. In this connection, we have stated in Opinion
M-490 that Section 4F is not applicable to the,question.
there under consideration. That statement Is correct In ~
the context there made, for there we had under considera-
tion a person's qualifying for the 8 eclal t
able service authorized under Section
                                   whzrf
                                      3            z'$%n~
coming into the System under Section 3E may transfer other
creditable service, when he may do 80, and the type of bene- "
fit he will receive are determlned by the facts of his em-:
ployment when he seeks to do so. If he then holds anelec-,"
tive office he may claim such additional service; if 'eligi-
ble, upon taking the oath of office. If he then Fs the
holder of an appolntive office or is an employee he may
claim any other creditable service only under the same con-
ditions and requirements as those applicable to other mem-
bers of the same class of membership, including the five
year membership requirement.
       The procedures outlined in the paragraph next above
would seem to maintain the required difference between
classes of membership based upon duties, etc., of elective
officials as distinguished from those of employees, as
authorized In the Constitution and as otherwise provided
in the Act.
       Section 3E does not expressly waive or require the
payment of a membership fee. That being true, we interpret
the Legislative intent to be that a person becoming a mem-
ber under that section shall pay, for each year of credit-
able service purchased, the statutory $2.00 membership fee.
Such fee may be paid with the sum required under Section,
3E or it may be deducted from the member's first paycheck.




                           -2461-
 .   -




Mr. Cordon Lloyd, page 5 (M-515)


       i?oor
           the reason that Legislative salaries are paid
from the General Revenue Fund, all matching amounts payable
by the State under Section 3E are payable from that same
fund.



                    SUMMARY
                    -w---e-


          Section 3E, Chapter 352, Acts of the
          50th Legislature, R.S., 1947, as
          amended by Chapter 524, Acts of,the
          58th Legislature, R.S., 1963, last
          amended by Chapter 114, p. 287, Acts
          of the 6lst Legislature R.S., 1969,
          codified as Article 6228a, V.C.S.,
          must be read together with other sec-
          tions of the Act. A person entering
          the Employees Retirement System under
          Section 3E becomes a member of the
          System as of the first day of the
          month in which he is employed, or in
          the month In which he takes the oath
          of office if he holds an elective
          office. To be eligible for the prior
          service provided under Section 3E,
          however, the member must, prior to
          January 1, 1970, file the application
          and pay the sum required under that
          section. An eligible person who has
          purchased under Section 3E eight or
          more years of prior Legislative se*
          vice has a vested rlght.in a paid-up,
          annuity to be calculated, to the ex-
          tent that his benefits are based up-
          on prior Legislative service, on the
          same basis as that provided for elec-
          tive officials, and he does not have
          to serve five years to qualify for
          this type of creditable service. HIS
          right to receive other creditable
          service and the benefits to be de-
          rived therefrom are determined by




                        -2462-
                                                     .   .   .




Mr. Gordon Lloyd, page 6 (M-515)


          the facts of his employment, other
          provisions of the Act, and established
          administrative procedure.
          A person buying credit for prior Legis-
          lative service shall pay a membership
          fee of $2.00 for each year of creditable
          service purchased in addition to the sum
          required under Section 3E.
          Matching amounts payable by the State
          under Section 3E are payable from the
          General Revenue Fund,.,




Prepared by James S. Swearingen
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
John Banks
Houghton Brownlee
John Grace
Sarah E. Phillips
MEADE F. GRIFFIN
Staff Legal Assistant

NOLA WHITE
First Assistant




                         -2463-
