                       EATTORNEYGENERAL
                             OF TEXAS

  W’ILL  WILSON
ATTORNEY    GENERA=-
                       August 24, 1960


Mr. Frank M. Jackson           Opinion No. WW-912
Executive Secretary
Teacher Retirement System      Re:   Questions relating to the
Austin, Texas                        payment of the State match-
                                     ing contribution to the,
                                     Teacher Retirement System
                                     occurring during the fiscal
                                     year ending August 31st,
Dear Mr. Jackson:                    1959.
      Your request for an opinion reads in part as follows:
           "During the fiscal year ending August
      31, 1959, the teachers' contributions of the
      Teacher Retirement System of Texas exceeded
      the estimate of contributions of members by
      one million, nine hundred eighty-eight thou-
      sand, two hundred fifty-five dollars and nine
      cents ($1,988,255.09). On September 1, 1959,
      a letter concerning said deficit in the State's
      matching contributions was received from the
      Honorable Robert S. Calvert, Comptroller of
      Public Accounts, and reads in part as follows:
           II
            ..... 'House Bill 5, First Called
           Session, 56th Legislature charged the
           allocations from the Omnibus Tax Fund,
           with the result there is no money avail-
           able to transfer to the System'.
           "Ke respectfully request your opinion concern-
      ing the following questions:
           "1. Is the C.omptrollerof Public Acc,ounts
      req~uireci
               to pay tne 'l'eacher
                                  Retirement System
      the above deficit in State's matching contri-
      butions?
           "2. If the answer to question number one
      is in the negative, is House Bill 5 in conflict
      with Article 3, section 48-a of the Constitu-
      tion of Texas?"
Mr. Frank M. Jackson, page 2 (w-912)


     Subsection (3) of Section 2 of Article 7083a, Vernon's
Civil Statutes, as amended by House Bill 5, Acts of the
56th Legislature, First Called Session, chapter 1, page 9
at page 10, provides:
           "Beginning with the fiscal year starting
    on   September 1, 1959, and annually thereafter,
    there is hereby allocated and appropriated to
    the Teacher Retirement System of Texas in accord-
    ance   with the provisions of Senate Bill No. 47,
    Acts of the Regular Session, Forty-fifth Legis-
    lature, 1937, and any amendments thereto, a sum
    each year equivalent to the contributions of the
    members of the Teacher Retirement Svstem during
    said year. Said annual allocated and appropriat-
    ed amounts shall be paid to the Teacher Retirement
    System in equal installments during the months
    of November, December, March, April, June and July
    of each fiscal year beginning with the year start-
    ing September 1, 1959, based upon the annual esti-
    mate by the State Board of Trustees   of the Teacher
    Retirement System of the contributions to be re-
    ceived from the members of said System during each
    such fiscal year; provided further, that in the
    event said estimate of the contributions of the
    members of the System shall vary from the actual
    amount of the teachers' contributions during the
    year, then such adjustments as may be required shall
    be made on the first day of the following fiscal
    year with any moneys in or due the General Revenue
    Fund."
     Subsection (2) of Section 11 of Article 2922-1, Vernon's
Civil Statutes, provides:
          "The depositing of the State's contribu-
     tions shall be made as follows:
          "(a) On or before the first day of November,
     next preceding each Regular Session of the Legis-
     lature, the State Board of Trustees shall certify
     to the State Comptroller for his review and adop-
     tion the amount necessary to pay the matching con-
     tributions of the State of Texas to the Teacher Re-
     tirement System for the ensuing biennium. This
     amount shall be included in the budget of the State
     which the Governor submits to the Legislature. The
     State Board of Trustees shall certify on or before
Mr. Frank M. Jackson, page 3 (W-912)


     August 31st of each year to the State Comp-
     troller of Public Accounts and to the State
     Treasurer the estimated amount of contribu-
     tions to be received from members during the
     ensuing year.
         "(b) All monies allocated and appropria-
     ted by the State to the Teacher Retirement
     System shall be paid to the Teacher Retirement
     System in monthly installments as provided in
     House Bill No. 8, Acts of the Regular Session,
     47th Legislature. ,Each of said monthly install-
     ments shall be paid into the State Contribution
     Fund."
     The current appropriation to the Teacher Retirement Sys-
tem reads as follows:
                "TEACHER RETIREMENT SYSTEM
"1 , There is hereby appropriated and    For the Years .Ending
     the Comptroller and Treasurer are                     _   .'-
     authorized and directed to trans-   August 31,     Au,gust31,
     fer into a special trust account      1960          1961
     in the hands of the Treasurer, the
     unexpended balances as of August
     31, 1959, of the various funds of
     the Teacher Retirement System, es-
     timated as follows:
          Teacher Savings Fund No. 133... $1,200,000
          State Contribution Fund No. 134       1,000
          Retire+ Reserve Fund No. 135...     105,000
          Interest Fund No. 136.......... 1,000,000
          Expense Fund No. 137...........      75,000
          Investment Fund No. 138........     975,000
"2. There is hereby appropriated and al-
     located out of the Omnibus Tax Clear-
     ance Fund to the Teacher Retirement
     System the State contributions neces-
     sary to match member contributions,
     estimated to be ......w.............. 31,700,OOO $32~,800,000
     TOTAL ESTIMATED APPROPRIATIONS,
     TEACHER RETIREMENT SYSTEM...........$~~,O~~,OOO$32,800,000~~
     From September lst, 1959, all funds in the Teacher Retire-
ment System constitute a separate trust account with the State
Mr'.Frank M. Jackson, page 4 (WW-912)


Treasurer as custodian rather than funds in the State
Treasury   Attorney General's Opinions wwT65 (1959) and
~~-600+ 1959). Thus, it is necessary to issue a warrant
on the State Treasu- to transfer money to the Teacher
Retirement System out of the State Treasury into a spe-
cial trust fund of the Teacher Retirement System in the
custody of the State Treasurer.
     We are informed by the Comptroller's Office that all
the sums appropriated to the Teacher Retirement System for
the fiscal year ending August jlst, 1960 have been paid to
the Teacher Retirement System. While the Legislature author-
ized the payment of the deficit mentioned in your request
from the General Revenue Fund, no appropriation for this
deficit was made to the Teacher Retirement System. Therefore,
you are advised that the Teacher Retirement System has a
claim against the General Revenue Fund of the State of Texas
for this deficit, which may be paid when such sum is appro-
priated by the Legislature. Article III, Sec. 48a, Texas
Constltution, H.B. 5, Acts of the 56th Leg., 1st C.S., 1959,
ch. 1, p. 9. In this connection, it is noted that the ap-
propriation contained in Item 2 of the appropriation to the
Teacher Retirement System was made out of the Omnibus Tax
Clearance Fund and did not appropriate any additional sum
from the General Revenue Fund. As is noted above, this fund
has been completely exhausted for'the fiscal year ending
August 31st, 1960.
     In answer to your first question, you are therefore
advised that the Comptroller of Public Accounts is not author-
ized to issue a warrant atthe present time payable to the
Teacher Retirement System for the deficit of the State's
matching contribution, for the reason that no money has been
appropriated for that purpose.
     In answer to your second question, the provisions of
House Bill 5, Acts of the 56th Legislature, First Called Ses-
sion, are constitutional. Attorney General's Opinion WW-640.
                        SUMMARY
          No appropriation to the Teacher Retire-
          ment System for the payment of any~deficit
          in State matching contribution having been
          enacted, the Comptroller of Public Accounts
          is not authorized ,to issue a warrant for the
Mr. Frank M. Jackson, Page 5 (WW-912)


            payment of the deficit in the State's
            matching contributions resulting from
            the teachers' contribution of the Teacher
            Retirement System exceeding the estimate
            of contributions made by the System.
            Such deficit'constitutes a claim which may
            be paid when an appropriation Is made to
            the Teacher Retirement System for such
            deficit, as provided in Article 70&a,
            Vernon's Civil Statutes.
                          Yours very truly,
                          WILL WILSON
                          Attorney General of Texas




                              Assistant
JR:ms
APPROVED:
OPINION COMMI'E'PTEE
W. V. Geppert, Chairman
F. C. Jack Goodman
Phocion S. Park III
W. Ray Scruggs
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
