           OFFICE    OF THE ATTORNEY     GENERAL   OF TEXAS
                                AUSTIN
i




    Honorable C. Be Cavne88
    State Audltrr
    Awtln, %~~X.WI

    Dear   Mr.   cavnear:




                                                 ts far our oonsldora-
                                                 r Retirement sy8ta3o
                                                 OOQpt th0 State'8
                                                 sentributlens to the
                                                    0~08 Of stats
                                                    are paid In whcle
                                              tho gonoral revenue fund*
                                             ed vhehher 8uoh warrants
                                                     Fund warrant8 are

                              ostlon, we would observe in tb begln-
                               a8 &3nnSlalf+tXtd
                                               liarl'&nt8
                                                        am payable
                               Of this StatO. It i8 tPUe that they
                               order sf lssuanoe, and that bwauss
                          enoy of revenues 8upporting the fund, It
                        ths after 188uanoe of general revonus war-
    rant8 before      the State is able to redeem thom in Oa8h.
              State varranta do not oonitltuts payment of the
    oblig8tions they are drawn to oover; their i8sWMIOe doe8
    not discharge th8 obligation to pay. They an merely order8
                                                                116



Honorable C. H. Cevne88, Page 2


dravn by one ef the Slsoal offloors of the government upon
another, directing the latter to pay out of named funds,
when available, 8 8peoified 8um to a named per8en, Payment
of the salary of an employee OS the State OS TeXa8, there-
Sore, Is accomplished not by the 188uanoe of a warrant
whereby the Treasurer Is directed to pay him 8 oertain EUP,
buud18 oonsummsted only by redemption of the warrant 80 ls-
    l


          With tho above prinolples In mind, ve would examine
the following provi8lon8 of the Teaohor Retirement Aot which
ve OOn8idOr pertinent to the inquiry submitted In yo\rletter:
             "sec. 8
             "1C   The Teacher Saving FPnd.
              '(8) The TeaohherSave         She11 be 8
        fund In which shall be eoa      ted regular five
        (5) per OentUn contributions from the ooapense-
        tlen of memb8r8, including OIIrrentinterest earn-
        ings*   Contributions to and payments from the
        Teaoher Saving Fund shall be made a8 Sollow8:
        "(b) Bach employer shall oauae to be de-
    ducted from the selery of eaoh member en each
    and every pay roll of such emplo er Ser each
    Andyevery pay roll period, Site s 5) per oentum
    of his earnable compensation, prevlded th8 t the
        of the deduction8 madj for a member shall
    8x.811
    not exceed Cne Hundred and Eighty Dollara ($180)
    during any one (1) year. Deductions shall be-
    gin vlth the first pay roll period of the 8ChoOl
    year 1937-38.  In determining the amount  earn-
    able by a member In 8 pay roll perled, the State
    Board of Trmsteea may Consider the rate ef an-
    nual eompensatlon payable to 8uc.hmember on the
    first day of the pay roll period a8 continuing
    throughout such pay roll peried, and it may
    omit deduction from compensation for any period
    less than a f'ullpay roll period if a teacher
    vas net a member on the first day of the e
    roll period, and to Saoilltate the making ef
Honorable C. Ii.Cavnea8, Page 3


     deduotl~s, It 8u1~m~$lfy the deduotlon re-_ --
     q~lred Of any member by 8~On an amOulltes SILSll
     not exceed one-tenth (l/10) of one (1) per oen-
     t\rmof the annual compensation upon the basis
     of whioh such deduction Is to be made*
          "(c) The deduction8 provided for herein
     8hall be made notwithstanding that the mlnhum
     colnpensetlonprovided for by law for any member
     shall be reduoed thereby* Every member ahall
     be deemed to oonsent and agree to the deduo-
     tlons made and prevldod for herein and Shafl:re-
     celpt for his full selery or 00Plpen8etlon,and
     payment OS salary or OO~eMbtiOn.   le88 said
     deduction. c&all be a Sull and OOmDlete dls-
     charge and acqulttanoe of all alaim and de-
     8iandawhataoovor Ser the sorvloos ronderod by
     such persollduring the period oovered by suoh
     payment, except es to the benefits provided
     under thl Act. The employer shall certify to
     the StateaBoard of TIW8tOeE 0x1each and every
     pay roll, or In such other manner a8 eeld Board
     may presoribe, the amount8 to be deducted; and
    -when deducted shall be paid into said Teacher
     Bavlng Fund, and shall be credltod, to the In-
     dividual eocount of the member frolpwhose oom-
     pensatlen said de&uctlon we8 made.
          " . . . .

          “8.   Celleotion or Contributionso
          "(1) The oolleotl0n of members3 contribu-
     tiOM.8hall be aa r0il0vs:
          "(a) Each employer shall cause to be de-
     ducted on each and every pay roll of 8 member
     for each and every pay roll period subsequent
     to the date of establishment 0S the Retirement
     System the contributions payable by such member,
     as provided In this Act. Each employer shall
     certify to the treasurer QS 88id OmplOyOr on
     each and every peg roll a statement es vouchers
     for the amount 80 deducted*
                                                          118


Honorable C. Ii. CsvneIsL),
                          Page 4


         "(b) The treasurer  or proper disbursing
    offlcetiof each employer on authority from the
    employer shall make deduotions from salaries of
    teachers a8 provided in this Act, and ahall
    transmit monthly, or at such t&no as the State
    Board of Trustee8 shall designate, a certified
    copy 0s the pay roll, and the amount 8peoified
    to be deducted shall be paid to the Executive
    Secretary of the State Board of Trustees, and
    after making 8 record of 811 reoelpts, the said
    Board shall pay them to the Treeaurer of the
    State of Texas, and by him be credited to Teeoh-
    er Saving Fund, and euch funds shall be deemed
    as epproprlated for we according to the provi-
    sions of this Act. For the purpose of oolleot-
    i.ngcontributions of teaohers who are teaching
    in common school di8triCtS, the oounty auperin-
    tendent or ox officio county superintendent of
    eeoh cehnty  OS this State is hereby designated
    to perform the dutlea of employer of all oo?mwm
    8chool district8 ever vhich he has jurisdiction,
    and he ia hereby authorized and empiwieredto re-
    tain the amounts 80 deducted from pay rolls of
    hremberaand have a correapondlng amount deducted
    from any funds available for paying teachers1
    (ralarles,and transmit mme to the Exeoutive
    Seoretary of the State Board of Trustees a8 pre-
    vlded for In this Act. Any dbllege or unlveraltp
    or other educational m%itutlon   or agexmy
     orted in whole or In part by the State sha
      ve the amount retalned or deducted Zrem the
    tida regularly appropriated by the State for
    tie c%rrent maintenanoe for such eduCationa de-
    partments end instItutiona.
         n . . 0 .

          "(8) The State Tpeasurer shall furnish an-
     nually to the State Board of Trustee8 a sworn
     statement of the amount of the funds in his cus-
     tody belonging to the Retirement System. The
     records of the State Beard of Prustees shall be
     open to public inspection and any member of the
     Retirement System ahall be furnished with 8 state-
     ment of the amount to the credit of hi8 individual
                                                               119

    Honorable C, H. Cavness, Page 5


        account upon written request by such member,
        provided that the State Board of Trustees shall
        not be required to answer more than one euoh re-
        quest Of a member in any one year.” (&pha8ls
        supplied) (Sea. 8, Art. 2922-1, Vernon’s Civil
        Statutes, as amended by Chapter 377, Acts 48th
        Legislature).
              A8 to “any college or university or other eduoa-
    tlonal institution or agency supported ln whole or ln part
    by the State,” the act expressly providea that the amounts
    required to be retained or deducted shall be retained or
    deducted “from the fund8 regularly a~rlated     by the State
    for the current sw$.ntenanoefor such eduostlonal department6
    and lnstltutlons.
              Obvlouaiy, It was oontemplated by this provision
    that the suma deductible under the act from the compensation
    of persons employed by the State es employer should be re-
    tained by the officials representing the State in the pay-
    ment of his salary. It was not within the contempletlon of
    the act that the S’undsrequired to be retained should be
    paid to the employee, or that he should be required to ad-
    vance the amounts from his pereonal funds; certainly It Is
    beyond the terms or intention of the act that he shoold be
    required to advance the amount8 to the Teacher Retirement
    e    In advance of the time the State pays his salary to
       .
              The objection has been raised that IS the Teacher
    Retirement System accepts general fund warrants, no lnvest-
    ment can be made of the sum8 represented by the verranta uu-
    tll the time they are paid, and further that the fund might
    be required to pay over, ln cash, moneys to wlthdravlng mem-
    beI- in advance of the time the warrant8 actually are payable.
    Relther objection Is tenable: there can be no obligation on
    the part of the offlcera managing the Fund either to invest
    money8 before they are receivable, or to return money8 prior
    to the time of actual payment into the fund.
              You are respectfilly advised, therefore, that under
    the express terms of the Teacher Retirement Act, it la the duty
    of the employing agencies to withhold and retain thelems de-
    ductible under said Act from the salaries of persons employed




b
                                                             120

Honorable C. H. CavneBs, Page 6


by the State. Such f’undsare not to be paid, nor are war-
Nlsts for the deductible Items to be payable, to the In-
dividual, but the 8ame am to be retained by the State, in
the hands of its OSfiOer8,and transferred to the appro-
priate accounts of the Retirement System “from the fund8
regularly appropriated for the current maintenance” of the
departments or Institutions affected,
     To the extent that our opinion O-5492 may be considered
to be In conflict herewith, the earlier opinion Is aocord-
lngly modified.


                                  Very truly yours
                              ATTORKEY QEI4ERAz,
                                               OF TEXAS




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