              .     ^




                         January 29, 1955

Hon. John H. Winters
Executive Director
Department of Public Welfare
Austin, Texas
                          Opinion No. S-151
                          Re:    Legality   of obtaining Federal
                                 Old Age and Survivors Insur-
                                'ante coverage for county appoint-
                                 ive officers    and employees
                                 presently    covered by a county
                                 retirement fund established     pur-
                                 suant to Article XVI, Section
                                 62(b), Tex.,Const.
Dear Mr. Winters:
          You have requested     the opinion   of this   office   on
the above captioned subject.
           Under Section 4 of Article 695g, Vernon's Civil
Statutes,  the Department of Public Welfare is authorized
to enter into agreements with the governing bodies of eli-
gible counties for the purpose'of   obtaining Federal Old
Age and Survivors Insurance coverage for county employees.
Under Section 8 of Article 6959, counties which have ob-
tained such coverage for their employees make the required
matching contributions   from the respective  sources of funds
from which the covered employees receive their compensa-
tion.
           Prior to the amendment of Section 218(d) of the
Social Security    Act by the 83rd Congress, Second Session,
employees of counties which had a retirement       system for
said employees were not eligible       to obtain coverage under
the Federal Old Age and Survivors Insurance system.         Since
the amendment of the Federal Act such employees may now
obtain coverage unless Article XbI, Section62(b)         of the
Texas Constitution    prohibits   their obtaining coverage.
The pertinent   provisions    of that section are the following:
Hon. John H. Winters,      page 2    (s-151)



               “(b)   Each county shall have the right to
       provide for and administer a Retirement          Disa-
       bility     and Death Compensation Fund for $he
       appointive     officers     and employees of the county;
       provided same is authorized by a majority vote
        of the qualified       voters of such county and af-
       ter such election        has been advertised  by being
       published, in at least one newspaper of general
        circulation    in said county once each week for
        four ccbnsecu;ive weeks; provided that t;;a;yunt
        contri uted v the countv to such m
       equal the amount paid for the same purpose from
       the income of each such person, and shall not
       -exceed at anv time five aer centum (5%) of&
        compensation oaid to each such uerson bv the

       such oerson.
             I,
                     and provided that the recioients    of
       benefiis’f;om   said Fund shall not be eligible
       for anv other oensi n retirement funds or direct
       aid from th.e State tf Texas. unless the Fund,
       the creation of which is orovided for he &
       contributedqv    the countv. is released tz’thi
       State of Texas as a conditi n to      eceivins  suc4
       other nension aid.      (Emphazis adied)
           We will first  consider the effect    of the prohibition
underscored in the first   paragraph.     This provision  specif i-
tally states that the county is limited as to the amount that
may be contributed   Yzo such m     ‘I i.e.,  a County Retirement,
Disability  and Death Compensatioi Fund. Matching contribu-
tions made by a county under the Federal Old Age and Survivors
Insurance system would not be made to a County Retirement,
Disability  and Death Compensation Fund. Therefore,       the limita-
tion contained in this provision    is not applicable    here.
           The provision   underscored in the second paragraph
above quoted likewise    presents no obstacle.   This is so for the
reason that the recipient     of benefits under Federal Old Age
and Survivors Insurance system and under a County Retirement,
Disability  and Death Compensation system will not be receiving
aid from a pension retirement fund of the State of Texas; nor
will he be receiving    any kind of direct aid from the State of
Texas.
            In your letter requesting our opinion, you state
that   the Department of Public Welfare has heretofore entered
                 .




Hon. John H. Winters,     page 3,, (S-151)


into agreements with approximately one~‘hundred ninety counties
for the purpose of obtaining Federal Old Age and Survivors In-
surance coverage for theirs employee,s.      You, point out that Ar-
ticle   695g containsno    requirement for any kind of an election
and that you have interpreted      the “authority    of the, State
Agency to enter into agreement with . . . co’unties . . . for
oarticipation   of their employees in the Federal Insurance,.Sys-
tern as being wholly separate ,and distinct      fro& a County Retire-
ment astern as provided for in this Section LArt. XVI, Sec.
62(bl/   of the Constitution.”     We agree.
             In _Parrar v. Board of Trustees         etc    243 S.W.2d
688,  150 Tex. 581 (1951)       the Supreme Co&t hlid unconstitu-
tional Article 6288~.       Tiis Article      provided that any person
who is a member of either the Teacher Retirement System or the
Employees Retirement System could, under stated conditions,              re-
ceive credit and resulting       benefits     for any and all prior serv-
ice creditable     as prior service for employment under the provi-
sions of either System.        Article 6228~ also provided that any
person who accumulated creditable           service, b.etween both systems
could retire with joint creditabl,e          service between the two sys-
tems.
                                                        J,
             Section 48a of Article III of the Texas Constitution
authorized the Legislature       to levy taxes and provide a retire-
ment fund for persons employed in public schools,             colleges  and
universities    supported in whole or in part by the State.            The
plain intent of this section          said the Court, was to keep edu-
cational workers in that field.           It did not extend its bene-
fits to any other persons.
           Ten years later the Em loyees Retirement amendment
was adopted.   Article XVI, Sec. i!2, Tex. Const.  This prov i-
sion, said the Court, conferred benefits   only on appointed of-
ficers  and employees of the State and was designed to encourage
experienced officers   and employees to remain at their posts.
          Both sections provide that no recipient     of its bene-
fits can ever be eligible   for benefits  from any other retire-
ment fund unless and until he releases    to the State such part
of the fund from which he is already receiving    benefits  as
may have been provided by the State.     The Court pointed out
that if persons could transfer from teacher to employee or
from employee to teacher carrying with them at each transfer
their accumulated benefits   under both systems up to the time
of their retirement,   the dominant purpose of both sections
would be defeated.
                                             -.    r




Hon. John H, Winters,   page 4   (S-151)


           Thus this case is distinguishable    from the one pre-
sented by your request.    As we have previously    pointed out,
the receipt of benefits sunder the Federal Old Age and Survi-
vors Insurance system will snot be the receipt     of a benefit
provided by the State.   Also in this case, the dominant pur-
pose of Section 62(b) of Article XVI will be effectuated
rather than destroyed.   County appointive   officers    and employ-
ees will have an additional   incentive  for remaining at their
posts,
           You are therefore advised that Article XVI of Sec-
tion 62(b) does not prevent county appointive officers  and
employees from obtaining Federal Old Age and Survivors Insur-
ance coverage.



           Section 62(b) of Artiale XVI of the Consti-
     tution of Texas does not prevent county appoint-
     ive officers, and employees from obtaining Federal
     Old Age and Survivors Insurance coverage,    even
     though presently   covered by a County Retirement
     Fund.

APPROVED:                           Yours very truly,
W. V. Geppert                       JOHNBEN SHEPPERD
Taxation Division                   Attorney General

Phillip  Robinson
Reviewer
Robert S. Trotti
First Assistant                        Assistant
