                   X%E      A'ITORNEY                  GENERAL
                                    OF      TEXAS

                                    Auwrm     11. TExAe
PRICE   DANIEL
AiTORNEY GENERAL
                                            May 12,    1948

         Mr. Gordon H. Lloyd                          opinion   No. v-570
         Executive Secretary
         Employees Retirement            System       Re: Eliglbillty  of en-
         Austin, Texas                                    ployees of the San
                                                          Jaclnto Museum of
                                                          History Association
                                                          to be members of the
                                                          Bmployees Retirement
                                                          System of Texas.
         Dear hr.      Lloyd:
                        Your request        for   an opinion    of this   department
         ij   as follows:

                         “iPlease adv$.se if, in your opinion,
                   the employees of the San Jacinto Museum
                   of History Association     are ell ible for
                   membership with the Brployeea Sfetirement
                   ,System of Texas.    These employees are en-
                   gaged for the purpose of maintain1          and
                   operating the San Jaclnto Memorial 3 onu-
                   ment and Museum.”
                         Section 62(a) of Article           16 of the State    Con-
         stitution       provides, in part, that:
                          ‘The Lsgislaturs shall have the
                   right’ to levy taxes to provide .a Re-
                   tirement, Disabilltg,   and Death Cor-
                   pensation Rnxlfor the aooolntive   of-
                   ficers   and ml Y s of the State;      . .”
                   WaPhasis a&ed’tgoughout)
                     The Act assed by the 50th Legislature     to
         carry Sectlon 62(a P of Article   16 of the Constitution
         into effect   Is codified  in Vernon’s’Clvll  Statutes a8
         Article  622%.    The following  are pertinent provisions
         of that Act:
                         “Section    1 . . .
                         “B . ‘Department’ sF;;trtan     any
                   denartment commlsslon. i s        Ion. oy
                                                                    -
                                                              -_-




b.     Gordon H. Lloyd,   page 2   (w-570)


        atzency of the State   Goknment.
              “‘2. ‘&gployee t rhall mean any re-
        gularly anoointed officer    or emulosee in
        a dewrtmsnt of. ,the State . . .
             “D, .  ‘Employer I shall   mean the &&
        of Texas. *
             We quote a part of Senate Concurrent        Resolu-
tion    No. 535 of the 50th Legislature:
             “Whereas, The San Jaclnto Museum
       of Hlstorv Association.    an ornanization
       of patriotic    Texans, under ooikract with
       the Board of. Control entered into pursu-
       ant to Senate Concurrent Resolution Ro.
       21 of the 46th Lenlslature,     and also DUF-
       suant to ,Senate CkcurrentVRedolutlon‘Ro.
       1.8 of the 47th Legislature,    and also pur-
       suant to Senate Conc,urrent Resolution      No.
       4, passed by the Regular Seasion of the
       49th LegiaLature oft Texas in 1945, has
       had the oare, cuetody and control of the
       San Yaclnto Memorial Monument and Tower
       on the San Saclnso Battlefield     linoe the
       memorial bower was opened generally      to
       the public on April 21, 1939; ,has main-
       tained and operated the same; and the
       elevator therein,    and the muse- in the
       base thereof,    with funds raised by pub-
       lic subscription    making a small charge
       for the use of the elevator     and the,sale
       of souvenlrs,in    and about aaid Memorial
       Tower, all without cost or e,x@enss to
       the State of Texar; and . . .
              “Resolved, By the Senate and House
        of Reuresentatives     concurring.   that the
        State Board of Control be authorized to
        enter into a contract with the San Jacin-
        to Museum of Histora Association,       where-
        by the care, custody and control of the
        San Jacinto Memorial Tower will be iven
        to and continue in the San Jacinto iiuseum
        of History.Assooiation     until otherwise
        provided by the Legislature,       to be main-
        talned in good order by said Association
        without charge to the btate of Texas,
-..
      --   z




               Mr. Gordon H. Lloyd,     page 3’ (v-570)


                     and requiring   the Association to make no
                     charge to the public for entering said;
                     buildingor    museum; and, be It further
                            “Resolved,  That said contract shall
                     provide that the San Jacinto Museum of
                     History Association,     sub&ot to the ap-
                     proval of the Board of Control,     shall
                     have authority    to sell souvenirs and
                     operate a concession     in and about said
                     building and to make a reasonable charge,
                     approved by the Board of Control, for
                     the use of the elevator     to the observa-
                     tion floor of the Memorial Tower; . . .’
                             The agreement or contract between the Museum
               Association     and the Board of Control provided, in part,
               as follows:
                             “This Memorandumof Agreement made




                           “Whereas, the 50th Legislature,    by
                    Senate Concurrent Resolution Ro. 35,
                    authorized the State Board of Control
                    to enter Into ‘a contract with.thg San
                    Jac1nt.o Museum of.History  Assoaitttlonc
                    as r0il0ws:   . . :+


                          To be eligible    to participate     in the hployees
               Retirement System benefits,      a person must be an entnl YW
               of the State of Texas.      “Employee” has been defined ion
               the Retirement Act as ‘any regularly        appointed officer
               or emvloyee in a deoartment of the State             . .” “De-
               partment” has been defined in the Act as ‘any de artment
               commission, institution     or agency of the State-:
               Clearly,  the San Jac1nto Museum of El              Association    is
               not a department within the provisiox$?Artiole               6228a.
               It Is a corporation    incorporated    under the laws of our
               State.   The employees of the Association         are not employees
               of the State but of the Association       itself,     The contract
               between the Association     and the State Board of Control,
Mr. Gordon H. Lloyd,   page 4   (V-570)


entered into pumuant to authority given in Senate Con-
current Resolution Ro. 35 of the 50th Legislature,   does
not make the employees of the Association  employees  of
the Board of Control.
          They are hot eligible,    therefore,    for   member-
ship in the Employees Retirement    8ysten.


           Employees of the San Jacinto Museum
     of History Association  are not employees
     of the State and therafore  are not eligl-
     ble for membership in the $mployees Re-
     tirement 8ysten of Texas under the provi-
     sions of the present Act, Art, 622&, V.
     c. s.
                                     Yourm very    truly,
                                ATTORWWC
                                       GBEEEALOF TEEA.



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