                                  April 7, 1971


Honorable   L. Dewitt Hale              Opinion     No. M-830
Chairman, Judiciary    Committee
House of Representatives                Re:    Construction of House Bill
State Capitol                                  806 of the 62nd Legislature,
Austin,   Texas  78711                         R.S. 1971, as it relates     to
                                               the Judicial Retirement
Dear Mr. Hale:                                 System of Texas.

           Your request     for   an opinion      reads   in part   as follows:

            “H.B. 886 will convert        numerous Courts of
     Domestic Relations        and Juvenile    Courts into State
     District    Courts of general      jurisdiction.       Such
     a conversion,      as you are well aware, would
     transfer    the financing     of these Courts from the
     several   counties     to the State of Texas.        Such a
     conversion.would       also result    in making these
     judges eligible      for coverage     under the Judicial
     Retirement     System.     It is this last result       which
     has caused the need for an opinion             from your of-
     fice.

             “Many of these Judges are now members of and
     participate      in the Texas County and District          Re-
     tirement     System, for which regular       payroll   de-
     ductions     are made.      Some of the Judges have been
     participating       in this system for many years.          They
     are naturally       concerned   as to their    status under
     such system should their         Court be converted      from
     local    to State financing.        The Judiciary    Committee
     desires    to protect     the rights   of all of these fine
     Judges and to write the conversion           statute   in such
     a way that each Judge can obtain          the maximum cover-
     age possible      under one or the other of the two
     retirement      systems,

            “To enable the Judiciary      Committee to draft
     this Bill   in an intelligent     way, we would deeply
     appreciate   your official    opinion   answering the
     following   questions:



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Hon.   L. Dewitt    Hale,   page   2      (M-830)



              “(1)   If these Courts are converted      to Dis-
       trict    Court status,     can the Judges elect  to retain
       their membership in the Texas County and District
       Retirement    System by continuing      to make voluntary
       contributions     thereto?

             “(2)   If these Judges can elect     to retain
       membership in the Texas County and District         Re-
       tirement   System, and they do elect     to do so? can
       they thereby    avoid the necessity   for participating
       in the Judicial     Retirement System?

             “(3)   If these Courts are converted       to Dis-
       trict   Court status,    is it mandatory that each of
       the Judges join the Judicial        Retirement  System,
       or can they waive participation         in such system
       by electing    to retain   membership in the Texas
       County and District      Retirement   System?

              “(4)   If these Judges elect      to join the
       Judicial    Retirement    System, can they legally
       buy or otherwise      obtain   credit for time served
       on the bench prior       to the date of conversion?

               “(5)     If these Judges elect  or are required
       to join the Judicial        Retirement System, are they
       legally      entitled   to a refund of all contributions
       theretofore        made to the Texas County and District
       Retirement       System?

             “(6)    If these Courts are converted    to Dis-
       trict   Court status,  is it legally  possible   for
       these Judges to maintain membership in both re-
       tirement   systems?

               “(7)     If any of these Judges has already
       qualified      for a vested    retirement     benefit    under
       the Texas County and District            Retirement     System,
       and such Judge after        the conversion       serves   as
       District      Judge long enough to vest a retirement
       benefit      under the Judicial      Retirement     System,
       can he then legally       draw benefits       from both
       systems once he reaches         retirement      age?”

               Membership in the Judicial Retirement   System of Texas
is   limited    to “Justices and Judges of the Appellate    Courts and


                                       -4021-
Hon. L. Dewitt      Hale,   page   3     (M-830)



District    and Criminal  District        Courts".     Article    V, Section       l-a,
Constitution    of Texas.

               Subsection  (a) of Section  62 of        Article     XVI of   the
Constitution      of Texas provides   in part:
              II. . . Persons participating           in a retire-
      ment system created          pursuant   to Section     l-a of
      Article     V of this Constitution         shall not be eli-
      ~gible to participate         in the Fund authorized         in
      this subsection.;       and persons     participating      in
      a retirement       system created      pursuant    to Section
      48-a of Article        III of this Constitution          shall
      not be eligible        to participate      in the Fund au-
      thorized     in this subsection        except as permitted
      by Section      63 of Article      XVI of this Constitution.
      Provided,     however,     any officer     or employee of a
      county as provided         for in Article      XVI, Section     62,
      Subsection      (b) of this Constitution,          shall not be
      eligible     to participate       in the Fund authorized        in
      this subsection,         except as otherwise       provided
      herein.      . . .'I

            Prior to the adoption   of Section    63 af Article    XVI of
the Constitution   of Texas a similar   ouestion    was involved    in
Farrar v. Board of Trustees     of Emp. Retirement     System of Tex.,
150 Tex. 572, 243 S.W.2d 688 (1951),     relating    to the Teacher
Retirement   System and the State Employees Retirement        System.
The Supreme Court held:
              II. . . if one's        retirement    benefits     as an
      employee are to be based in part on services
      rendered     years ago as a teacher,            the Employees
      Retirement        Fund will be to that extent depleted.
      That result        would not serve the dominant pur-
      pose of the Employees Amendment as above discussed,
      in fact,      it would be antagonistic            to it.    And the
      same would be true as to the Teachers Amendment
      if one's     benefits      thereunder      are based on and paid
      in part for,        service     as an employee rendered         long
      before     that amendment was adopted.              Sec. 48a of
      Article     III of the Constitution,            supra, clearly
      restricts       teacher    retirement      benefits    to teachers,
      while Sec. 62 of Article              XVI, supra, with equal
      clarity     restricts      employee retirement         benefits
      to employees.          It follows      that neither      can be


                                       -4022-
Hon.   L. Dewitt   Hale,   page    4       (M-830)



       suffered  to encroach   upon the. other;   nor can
       any other retirement    system be permittea    to en-
       croach upon either    of them, until    the Constitution
       is amended to permit it."

            Subsequent    to the Farrar decision,       Section    63 of Article
XVI was adopted to allow memmf              the Teacher Retirement        System
and members of the Employees Retirement           System to receive     credit
for service    and membership in both retirement         systems.     Section
63, however,    is limited    to the Teacher Retirement        System and the
Employees Retirement      System.    Furthermore,     as above noted,     such a
blending   of the Judicial     Retirement   System with another retirement
system is specifically      prohibited    by Section    62 of Article     XVI of
the Constitution     of Texas.

              You are therefore     advised  that the Legislature      may not
constitutionally     authorize    benefits   under the Judicial     Retirement
System to be based in part on services           rendered   as a member of
another retirement      system,   and likewise    the Legislature    may not
constitutionally     authorize    benefits   of the District     and County
Retirement     System to be based in nart on services         rendered   as
a member of the Judicial        Retirement   System.    Farrar v. Board of
Trustees    of Emp. Retirement      System of Tex.,    supra.

            Your questions        are    accordingly   answered   as follows:

          '(1) Judges of          District   Courts of general   jurisdiction
created by the provisions          of H.B. 806 may not retain      their member-
ship in the Texas County          and District    Retirement System;

           (2) Judges of District    Courts of general              jurisdiction
created by the provisions    of H.B. 806 automatically              become mem-
bers in the Judicial   Retirement  System;

           (3)  Judges of District   Courts of general              jurisdiction
created by the provisions   of H.B. 806 may not waive               participation
in the Judicial  Retirement  System;

             (4)   Judges of District Courts of general  jurisdiction
                                                               .      _
created  by the provisions    of H.B. 806 may not obtain credit      for
services   rendered   as a member of the Texas County and District
Retirement    System;

              (5)  Such Judges are legally  entitled  to a refund of
contributions     made to the Texas County and District   Retirement
System on termination     of their membership in such system;


                                        -4023-
.   .     .




        Hon.   L. Dewitt   Hale,   page   5     (M-830)



                      (6)   Such Judges    may not       maintain       membership     in both
        retirement     systems;  and

                     (7) Such Judges       may not legally             draw benefits     from
        both   systems upon reaching       retirement  age.

                                      SUMMARY

                       The Legislature    may not constitutionally          au-
               thorize    benefits    under the Judicial      Retirement
               System to be based in part on services              rendered
               as a member of another retirement            system,    and
               likewise    the Legislature      may not constitutionally
               authorize    benefits    of the District      and County
               Retirement     System to be based in part on services
               rendered    as a member of the Judicial          Retirement
               System.     Farrar v. Board of Trustees          of Emp. Re-
               tirement    System of Texas, 150 Tex. 572             243 S.W.2d
               688 (1951) ; Article.     V Section     l-a,    Teias Consti-
               tution;    Article    XVI, section   62, Texas Constitution.

                                                       Very   truly     yours,

                                                       CRAWFORDC. MARTIN
                                                       Attorney General of Texas




                                                          First       Assistant

        Prepared     by John Reeves
        Assistant     Attorney General

        APPROVED:
        OPINION COMMITTEE

        Kerns Taylor,  Chairman
        W. E. Allen,  Co-Chairman
        John Banks
        J. C. Davis
        John Grace
        Houghton Brownlee

        MEADEF. GRIFFIN
        Staff Legal Assistant

        ALFRED WALKER
        Executive Assistant                   -4024-
