                        February 12, 1990




Honorable Hugh Parmer           Opinion No.   JM-1142
Chairman
Committee on Inter-             Re: Types of retirement plans
   governmental Relations       that appraisal  districts may
Texas State Senate              offer their employees
P. 0. Box 12068                 (RQ-1778)
Austin, Texas. .78711

Dear Senator Parmer:

     We understand  you to ask essentially   two questions.
First, you ask us to specify the types of retirement   plans
that an appraisal district may offer its employees.  Second,
you wish to know what will be the income tax consequences to
individual appraisal   district  employees  and the proper
method of disbursing funds held in any retirement plans    in
the event that any plans already in place were entered   into
improperly.

        Your opinion 'request is prompted.by. the issuance of
Attorney General Opinion JM-1068 (1989), which concluded
that appraisal     districts were without authority     to enter
into certain contracts providing         retirement   plans   for
appraisal district     employees.    We construed   the question
submitted in that request to ask whether            an appraisal
district had the authority      to create a local retirement
system, authority similar to that conferred on incorporated
cities and towns by V.T.C.S.      article 6243k and on counties
by V.T.C.S.     article 62283.     Because no statute     confers
explicit authority     on appraisal    districts  or, for that
matter,    on any other sort of.special.district to create such
a local system, we concluded          that no such      authority
existed.1 The opinion apparently       has been misconstrued   to



      1. This opinion should not be construed to call into
question the legitimacy of a plan authorized by special law
creating a special district.




                                P. 6012
Honorable Hugh Panner - Page 2       (JM-1142)




hold that subsections   (b), (c), and (d) of secti.on 67 of
article XVI of the Texas Constitution       sets forth the
exclusive   list of the retirement plans that political
subdivisions may provide for their employees.   However,  we
did not so hold; rather, we held that there was no statutory
authority to create the sort of system about which we
understood the reguestor to inquire.

     We will answer your first question in three parts.    We
will discuss   first the legislative history     and proper
construction of section 67 of article XVI of the Texas
Constitution.  Then we will specify those retirement    plans
or systems in which appraisal districts   are authorized   by
Texas statute to participate.  Then we will discuss  whether
appraisal districts have imnlied authority to create    Iocal
systems, authority analogous to that explicitly conferred by
V.T.C.S. articles 6243k and 62283 on incorporated cities and
counties, respectively.
                              I

   ::Section 67 of'article         XVI of    the Texas   Constitution
provides:in pertinent part:

           (a) General Provisions.    (11 The leais-
       lature mav enact aeneral    laws establishinq
       >s ste s an                        ement    nd
       related
        ;        is b' *:                enefits  for
       .public                         :Financing  of
       benefits must be based on sound actuarial
       principles.   The assets of a system are held
        in trust for the benefit of members and may
        not be diverted.

           .   .   .   .

            (4) General laws establishing   retirement
        systems and optional retirement programs   for
        public employees and officers    in effect at
        the time of the adoption of this section
        remain in effect, subject to the general
        powers of the legislature established in this
        subsection.

           [(b)        State Retirement Systems.]

           .   .   .   .




                                   p. 6013
Honorable Hugh Parmer - Page 3   (JM-1142)




           (c) Local Retirement   Systems.    (1)   The
        legislature shall provide by law for:

           (A) the creation by any city or county of
        a system of benefits  for its officers   and
        employees;

            (B) a statewide  system of benefits   for
        the officers and employees of counties      or
        other political subdivisions of the state in
        which    counties    or    other    political
        subdivisions may voluntarily participate; and

            (C) a statewide system of benefits   for
        officers and employees of cities    in which ..~
        cities may voluntarily participate.

           . . . .

           (e) Anticipatory Legislation.   Legislation
        enacted in anticipation of this ,amendment is
        not voids because      it  is    anticipatory.
        (Emphasis added.)

     Section 67 was enacted at the same time that several
other sections of the constitutions were repealed.         Acts
1975. S.J.R.~ 3~.2 The ,Bill Analysis prepared. for,S.J.,R. No.
3 stated:



      2. Section 48a of article III, adopted in 1936, and
granted the legislature the authority       to establish     a
retirement fund for employees   of public schools,   colleges,
and universities.  S.J.R. 18, Acts 1935, 44th Leg., at 1219.
Section 48b of article III, adopted in 1965, created in the
constitution.the  Teachers, .Retirement System.    S.J.R.  27,
Acts 1965, 59th Leg., at 2201.

     Section 51e of article III, adopted in 1943, permitted
incorporated cities and towns to create municipal retirement
systems Andy disability pensions.   H.J.R. 8, Acts 1943, 48th
Leg., 5 1, at 1142.,,    Section  51f   of article    III, also
adopted in 1943, permitted the legislature to provide for a
statewide system of retirement    and disability benefits    for
municipal officers and employees.     H.J.R.  8, Acts 1943, 48th
                                            (Footnote Continued)




                               p. 6014
Honorable Hugh Parmer - Page 4     (JM-1142)




           The proposed amendment    is similar to the
        proposal which was overwhelmingly      approved
        during the 1974 Constitutional      Convention.
        The proposal combines the various detailed
        provisions in the present constitution into a
        more concise provision, eliminates rigidities
        which     required   constitutional amendments
        each time   the Legislature sought to improve
        retirement      benefits,    and    strengthens
        protections for members of existing systems.

     The amendment   enacting section 67 accomplished     two
broad objectives.   First, subsection (a) of section 67 was a
grant of authority,   conferring very flexible power on the
legislature to establish retirement and disability   systams.
The uSection-by-Section Arialysis": in the Bill Analysis   of
Senate Joint Resolution No. 3 describes subsection (a), in
relevant pa*, in the following way:

           Subsection (a)(l) authorizes the Legisla-
        ture to establish   systems and', programs  of
        retirement and related disability and death
        benefits for public employees. mi     arant of
        s'                  flexible    thans present
        provisioki whT:L authorize specific systems
        in very narrow terms and gives constitutional
        status to whateversvstems    -or nroarams  the


(Footnote Continued)
    I 5 1, at 1142.
L---v.
     Section 62 of article XVI, adopted in 1946, authorized
the legislature     to create      system   of   retirement,
disability,  and death benefit:    for state officers    and
employees.   It also authorized each county to create such a
system for its officers and employees with the.approval of a
majority of voters   of the county. H.J.R.   10, Acts  1945,
49th Leg., at 1045.

     And finally,. section 63 of article XVI, adopted      in
1953, provided that 'qualified.;members    of then Teacher
Retirement System were entitled to service credit for time
earned while they were working for the state and, similarly,
that qualified members of 'the state Employees    Retirement
System were entitled to credit for time earned while they
were teachers.  S.J.R. 6, Acts 1953, 53rd Leg., at 1169.




                                 p. 6015
Honorable Hugh Parmer - Page 5   (JM-1142)




        Maislature   mav   create subject     to   the
        following general requirements:

            (a) benefits must be based on      sound
        actuarial principles   -- a new requirement
        which places a new level of fiscal and
        fiduciary responsibility  on the Legislature
        and the administrative bodies which manage
        the systems.

             (b) funds or assets of the systems are to
        be held    in trust for the members     of the
        systems    and cannot be diverted     for   any
        purpose other than the benefit of the members
        -- a new requirement which protects the funds
        from being used for non-retirement    purposes.
        (Emphasis added.)

Bill Analysis, S.J.R. 3, 64th Leg. (1975).

     The legislature has created a variety of retirement and
disability plans for public employees that subsection (a)(l)
would sanction.  See. e.a     V.T.C.S. arts. 6243a-1,   6343b,
62436-1, 6243e, 6243e.1, 6143e.2, 6243e.3, 6243e-2, 6243e-3,
6243f, 6243f-1, 6243g, 6243g-1, 6243g-3,      62433   (setting
forth provisions    'permitting the    creation  of, various
retirement programs   for firemen, policemen, and municipal
employees'under  certain circumstances).3    The legislature
also has ~enacted several statutes permitting       political
subdivisions to establish various retirement     or deferred
                   -.


      3. Several of the above-listed statutes were enacted
prior to the adoption of section 67 of article XVI: indeed,
several were enacted      prior to the    adoption  of  the
constitutional amendments that section 67 was intended to
replace. Subsection    (a)(4) of section   67 provides  the
following:

           General    laws   establishing    retirement
        systems and optional: retirement programs   for
        public employees   and officers   in effect &
        the time   of the ado&ion    of this section
        remain in effect,    subject to the general
        powers of the legislature established in this
        subsection. (Emphasis added.)




                              p. 6016
Honorable Hugh Parmer - Page 6     (JM-1142)




compensation plans that receive    favorable tax treatment
under the Internal Revenue Code.    These statutes will be
discussed in Part II of this opinion.

     In addition to the conferral of flexible authority  set
forth in subsection (a) of section 67, subsections (b), (c),
and (d) direct the legislature     to establish   or retain
certain retirement systems.4 Subsection (c), the subsection
with which you are concerned, directs the legislature     to
provide for the creation of local systems by any city or
county and to create two statewide systems, one for county
and district employees and one for municipal employees,   in
which participation is voluntary.

     The "Section-by-section Analysis" of the bill        analysis
describing subsection (c) contains the following:

           Paragraphs (l), (2), and (3) of subsection
        (c) require the Legislature      to provide        for
        (a) the creation of separate local systems by
        cities and counties,    (b) a statewide       system
        of benefits    in. which counties        or    other ,.
        political subdivisions can participate on a
        voluntary  basis,     and    (c)   a       statewide
        municipal system in which towns and cities
        can participate   ona     voluntary basis.        The
        present   prohibition    '-:
                                   against     legislative
        appropriations for local retirement          systems
        has been deleted.,; The requirement that the
        creation of separate local systems by cities
        and counties must be approved by the voters
        thereof has also been deleted. Since
        subsection deletes direct arants of authoritv
        enablina municinalities       and counties           to
        t
        es abl's t eir ow                        retirement
        plans, the Leaislature      m v  need to enact
        enablina leaislation to rezlace    Article      III,




      4.  Subsection (b) of section 67, intended essentially
to replace sections 48a and 48b of article III and sections
62 and 63 of article XVI, directs the legislature to create
state retirement and disability systems for teachers,  state
officers, and employees.    Subsection   (d) of section    67
directs that the legislature retain the system already     in
place for the state's judiciary.




                                p. 6017
Honorable Hugh Parmer - Page 7    (JM-1142)




        Section 51e. and Article XVI. Section 62(b),
        of the nresent    onstitution. Other details
        that have beenC deleted exist in present
        statutes.   (Emphasis added.)

Bill Analysis, S.J.R. 3, 64th Leg. (1975).

     Pursuant to subsection (c)(l), the legislature      enacted
V.T.C.S.   articles   6243k and 6228j, which conferred        on
incorporated   cities    and   counties,   respectively,     the
authority to create local systems.5    Pursuant to subsection
(c)(2), the legislature enacted what is now codified          as
subtitle F of title 8 of the Government Code, creating the
statewide Texas County Andy District Retirement      System   in
which counties and       special districts   may    voluntarily
participate.~   And, pursuant,. to-, subsection   (C) (3),   the
legislature enacted what is now codified ,a8 subtitle G of
title 8 of the Government    Code, creating a statewide Texas
Municipal Retirement    System in which   incorporated    cities
voluntarily may participate.

    ~Thus, while, section67 of' article.:XVI does direct the
legislature to establish, certain retirement and disability
systems, it also grants broad authority to the legislature



      5. Articles 62283 and .6243k, V.T.C.S., were"~  enacted
in.1975: .Acts 1975, 64th Leg., ch.'426,~ at 1127.   Sections
3 and 4 of that bill provided:

           Sec. 3. Retirement,     disability,     and
        death benefit  systems or programs     created
        under the authority  of Article III, Section
        51-e, or Article XVI, Section 62, Subsection
        (b)s of the Texas Constitution, or under the
        general powers of home-rule cities, remain in
        effect, subject to power granted by law to
        alter or abolish the systems.

           Sec. 4. This   Act   takes  effect  on
        adoption by the qualified voters  of this
        state of S.J.R. No. 3, 64th Legislature,
        Regular Session.

The amendment enacting section 67 was adopted at an election
held on April 22, 1975.




                               p. 6018
Honorable Hugh Parmer - Page 8      (JM-1142)




to establish  other retirement and disability    systems  for
public employees.   It does not set forth any exclusive  list'
of the the retirement and disability systems that could be
established  for public employees and Attorney        General
opinion JM-1068   did not so hold. We now turn to those
pension plans or retirement     systems in which appraisal
districts are authorized by Texas statute to participate.

                               II

     The legislature by statute has created or authorized
the creation of several pension plans or retirement    systems
in which appraisal   districts may choose to participate.
Article 695g, V.T.C.S.,  authorizes political   subdivisions,
including appraisal districts, to participate In the fed.eral
Social Security .programr' Attorney.~ General Opinions   S-152~
(1955): S-19 (1953); V-1198 (1951). And,~ as was pointed out
in Attorney General Opinion JW-1068, appraisal districts are
authorized  to participate   in the statewide     County   and
District Retirement System. Gov#t~Code.§ 842.001.

     Additionally, the legislature hasauthorized    political
subdivisions, including appraisal, districts,   to establish
programs that receive favorable tax treatment as "deferred
compensation10 plans for purposes of subchapter D of chapter
1 of the      Internal Revenue    Code.6   Article   6252-3e,
V.T.C.S., 7 enacted in 1989, permits political   subdivisions
in the :state, including appraisal districts,      to create
deferred   compensation  plans that meet the criteria.'of
section 401(k) of the Internal Revenue Code. And article
6252-3f, V.T.C.S., also enacted in 1989, permits    political
subdivisions in this 'state, including appraisal   districts,
to create deferred compensation plans that meet the criteria
of section 457 of the Internal Revenue Code.8



      6. For purposes of the Internal Revenue Code, pension
plans, profit-sharing plans, stock bonus plans, as well as
deferred compensation plans under state law, are considered
"deferred compensation" plans.

      7. We note that two different         statutes   have   been
designated "article 6252-3e.l'

      8.   We note that   both V.T.C.S.    articles 6252-3e and
                                            (Footnote Continued)




                               P. 6019
Honorable Hugh Parmer - Page 9   (JM-1142)




     There is no statute, however, that confers   on appraisal
districts the authority to create local pension   systems that
is analogous  to the authority conferred    on    incorporated
cities and towns by V.T.C.S. article 6243k9 and   on counties




(Footnote Continued)
6252-3f are repealed, effective September 1, ,1990, to be
replaced by V.T.C.S. article 6252-351. With the enactment of
these statutes, V.T.C.S. article 6252-3b, which was ~enacted
in 1972 and which permitted any political subdivision     to
create a deferred  compensation plan for its employees   and
authorized the purchase of insurance and annuity contracts
and mutual fund contracts, was repealed.    Acts 1989, 71st
Leg., ch. 147, 5 4, at 522.

      9.   Article 6243k, V.T.C.S., provides the following:

           An incorporated city or town may create a
        retirement,   disability,  and ~,death. benefit
        system for its      appointive  officers    and
        employees if a majority     of the qualified
        voters of the city or town voting       on the
        propositions approve the     creation   at   an
        election   called for that purpose.        Each
        member of the system shall contribute to the
        system an amount determined by the city or
        town, which may not exceed 10 percent of the
        member's annual compensation paid by the city
        or town, and the city or town shall contri-
        bute for each member an amount that at least
        equals but is not more,than twice the amount
        of the member's contribution.   A member of a
        municipal system is eligible for disability
        benefits if he is disabled in the course of
        his employment with the city or town.         A
        member is eligible for retirement benefits if
        he is 65 years old or older, or he is 60
        years old but less than 65 years old and has
                                          (Footnote Continued)




                              p. 6020
Honorable Hugh Parmer - Page 10      (JM-1142)




by V.T.C.S. article 6228j10, which were enacted pursuant  to
subsection (c)(l) of section 67 of article XVI of the Texas
Constitution.   It is    argued, however,   that   appraisal
districts have the _imDlied aUthOrity t0  create such local
systems. It is to these arguments that we now turn.

                               III

     While home-rule cities are held to have the full power
of self-government, counties and special districts are not.
In other words, home-rule cities have full authority to do
anything that the legislature could authorize   them to do;
accordingly, home-rule  cities look to the acts of the
legislature,  not for grants     of power, but only     for
limitations on their powers.    Tex. Const. art. XI, 5 5;
Local Gov't Code ch. 51; State ex rel. Rose V. Citv of ha


(Footnote Continued)
        been employed by the      city    or town   for   25
        years or more.

      10.   Article 62283, V.T.C.S., provides the following:

            (a) A county may create a retirement,
        disability, and death benefit system for its
        appointive   officers, and   employees    if   a
        majority   of the qualified voters      of the
        county 'voting on the proposition approve the
        creation   at an election called     for that
        purpose   and advertised   in at least       one
        newspaper   of general   circulation   in    the
        county once a week for four consecutive weeks
        before the election is held. Each member of
        a system shall contribute to the system an
        amount determined by the county, but not more
        than five percent of the member’s         annual
        compensation paid by the county. The county
        shall contribute   for each member   an equal
        amount.

            (b) The assets of a county system, after a
        sufficient portion is set aside each year to
        pay benefits    as   they accrue, shall     be
        invested in bonds issued or guaranteed by the
        United States, this state, or counties      or
        cities of this state.




                               p. 6021
Honorable Hugh Parmer - Page 11    (JM-1142)




Porte, 386 S.W.2d 782   (Tex. 1965); Jones v. Int'l Ass#n
Firefiahters Local Union No. 936, 601 S.W.2d 454 (Tex. Civ.
APP. - Corpus Christi 1980, writ ref'd n.r.e.).
      Counties and special districts, on the other hand, look
to the legislature for grants of power.          A county or a
special district       exercises only such powers as have been
expressly       delegated  to it by the constitution     or the
legislature       or which exist by clear and       unquestioned
implication. See, Canales v. Lauahlin, 214 S.W.2d 451 (Tex.
1948); Tri-CitV      Fresh Water SUDD~V Dist. No. 2 of Harris
COUntV V. Mann, 142 S.W.2d 945 (Tex. 1940); Franklin      Countv
Water Dist. v. Majors,        476 S.W.Zd 371 (Tex. Civ. App.    -
Texarkana 1972, writ ref'd n.r.e.) (a special district        can
do only',that. which is authorized by the statute .creating
it),. -.. .,.
            s

     Nevertheless, several arguments have been adduced    in
supportof the proposition that, in addition to or instead
of those retirement and disability plans discussed in Part
II of this opinion,  appraisal districts have the wimplied"
authority to create.local retirement and disability systems.
We find none of the arguments persuasive.

     The first such argument    is that because     appraisal
districts have the authority to llcompensatet*their employees
pursuant to section 6.05(d):,of the ,Tax Code and because
retirement  and disability   plans constitute    a part    of
%ompensation, "11 they have implied authority to. establish



      11. In Bvrd v. CitV of Dallas,     6  S.W.Zd 738  (Tex.
1928); the Texas Supreme Court upheld the constitutionality
of a statute authorizing pensions   for city police and fire
department personnel.~ Those challenging the statute   argued
that the granting of pensions to persons who were no longer
employed by a political     subdivision  violated  the state
constitutional prohibition against granting public funds for
private purposes.   The court disagreed, holding that such a
benefit constituted   part of the compensation     for which
employees contracted.

     This case stands for the proposition      that a statute
permitting the ~creation of a pension system does not violate
the constitutional    prohibition  against granting     public
                                          (Footnote Continued)




                               p. 6022
Honorable Hugh Parmer - Page 12    (JM-1142)




local retirement and disability systems, apparently  without
restriction.  Indeed, it is argued, in the words of one
brief submitted   in connection with this request,      that
ziyf,i;a; districts have authority to create plans "as they
           We disagree for several reasons.

     First, statutes are not to be construed in such a way
as to impute to the legislature a foolish, useless, or vain
thing. State ex rel. Childress v. School Trustees of Shelbv
County, 239 S.W.Zd 777 (Tex. 1951); Dovalina v. Albert, 409
S.W.2d 616 (Tex. Civ. App. - Amarillo 1966, writ ref'd
n.r.e.). The governing bodies of counties,        cities   (both
home-rule and general law),   school   districts,  and   special
districts are empowered, either by the constitution or by
statute, to %ompensatem     employees.    If a conferral      of
explicit authority   to the governing    body of a political
subdivision to llcompensatell public employees      necessarily
entailed the implied authority to offer those employees      any
retirement plan that the governing body saw fit, then the
legislature's enactments of the statutes set forth in Part I
of this opinion were useless, superfluous acts. Indeed, the
legislature's adoption of all of those statutes set forth
originally as title 109 of the,Revised      Civil Statutes    of
Texas, recodified    in 1981 as title 1lOB and           finally
recodified in 1989 as title 8 of the Government            Code,
statutes dating back to 1909 and 'through 1989, would have
been superfluous.   While some~persons may have assumed     that
political subdivisions have the implied authority to offer
to their employees' any retirement plan that they so. choose,
legislatures going back to almost the turn of the century
evidently have not.

     Second, the argument that appraisal districts have the
implied authority to offer their employees any retirement
plan that they so choose would produce an absurd result.    It
would mean that, while      counties,  cities,   and    school
districts are governed by and limited to those statutes that
the legislature   has enacted over the years         regarding
retirement  plans, appraisal districts    have unrestricted
power to do whatever they want. Moreover,      it would also


(Footnot;aCoiziued)
funds:             not stand for the proposition ~that         a
political subdivision has the implied authority to create      a
local pension system.




                               p. 6023
Honorable Hugh Parmer - Page 13    (JM-1142)




mean that those safeguards and protections         designed   to
vouchsafe the interests of participating employees and those
limitations upon inves'tments set forth both in section 67 of
article XVI and in the statutes that authorize the creation
of various pension plans or retirement systems would not be
applicable, since those provisions govern plans and systems
enacted by general      law.       e.  a     Attorney   General
Opinions MW-570, MW-506      (198;:; &-ii2    (1980) (opinions
construing statutory limitations on investments designed      to
afford protection  to participants).       Nor is it at all
certain whether retirement plans created absent explicit
statutory authority would be protected under the Texas Trust
Act, which governs the administration of private        trusts.
See CreDs v. Board of Firemen's Relief       8 Retirement   Fund
Trustees of Amarillo,    456   S.W.2d 434   (Tex. Civ. App. -
Amarillo 1970, writ ref'd n.r.e.). We know of no reason why
the legislature would intend such a result.12

     And third, interpretation by implication is permissible
only when   it is necessary;        the argument that a special
district has tinlied authority to 'do..athing"is        inapposite
in an instance in which it is given specific'authcrity to do
                    , Cre a r v -Hidala; Countv Water Imorove-
                      283aS:W.    ‘151  (Tex. Comm'n App.    1926,
                     alle v. Citv of Austin, 22 S.W. 668 (Tex.
1893). Indeed, invoking a common rule of statutory construc-
tion, 'it could well be argued that those statutory plans or
systems enacted'by the legislature should be read to exclude
any others.    See Weaver v. ,Robison, 268 S:W. 133          (Tex.
1924); Poster v. Citv of Waco; 255 S.W. 1104 ,(Tex. 1923);
Attorney General Opinion H-604 (1975) (holding thE",,,Ezz
method set forth in V.T.C.S. article        62289, which
the County and District Retirement System and detailed         the
way in which a political subdivision could contribute to the
system, was exclusive).        As we pointed out in Part II of
this opinion,     special districts,        including    appraisal
districts, that are not authorized explicitly         to create a
local retirement system may choose to do one or more of the



      12.  For this same reason we reject the argument  that
all political .-subdivisions have the implied authority   to
create whatever pension plan or retirement system that they
so choose and that all of the constitutional amendments  and
statutes enacted by the legislature are merely   limitations
on that implied authority.




                                p. 6024
Honorable Hugh Parmer - Page 14   (JM-1142)




following: participate   in the federal Social      Security
system, participate in, the state-wide County and District
Retirement System, or adopt one of the deferred compensation
plans authorized by statute. We need not strain to find an
implied power when the legislature has conferred   specific,
though limited, powers.

     It is also argued that Attorney General Opinions   M-836
(1971) and WW-215 (1957) and Lower-Colorado River Auth. v.
Chemical Bank & Trust Co., 185 S.W.2d 461 (Tex. Civ. App. -
Austin 1945). aff'd 190 S.W.Zd 48 (Tex. 1945)    lhereinafter
-1    support the argument that appraisal districts      have
implied authority to create a local pension plan. We think
that reliance on these authorities is misplaced.

     Attorney   General Opinion M-836 concluded      that" the'
Sabine River Authority had the implied power to enter into a
deferred  compensation   and pension plan based upon its
explicit authority to employ and fix the compensation      for
those executives and employees as is necessary to carry out
the functions and duties of the authority.      That opinion
relied upon :v.;                                           151
S.W.2d 570 (Tex. 1941), m          154 S.W.2d 659 (Tex. ,Civ.
APP. - Fort Worth    1941, no writ) [hereinafter. Friedman],
Hvrd V.   Citv of Dallas.      6 S.W. 2d 738      (Tex. 1928)
[hereinafter m],     and Attorney General Opinion WW-215. The
latter opinion also relied upon Friedman in support,of ' the
proposition   that the Port ~Isabel-San Benito Navigation
District had the implied power to provide certain benefits,'~
including pension benefits, to its employees.

     For three reasons, we do not think that the two court
opinions are controlling.    First, both Friedman   and, &&
concerned   whether    specific statutes    enacted by    the
legislature, one authorizing   the creation of pensions   for
city police  and firemen and the other creating      a Texas
Employment Compensation Fund, violated specific provisions
of the Texas Constitution.   In both cases, the Texas Supreme
Court upheld the challenged statutes, concluding that the
benefits that each provided should be considered a part of
the compensation    that employees   earned, rather than a
gratuity conferred. Neither case stands for the proposition
that a political subdivision has any implied power.


     Second, the holdings  of these two opinions cannot be
reconciled with other attorney general opinions, issued both
prior and subsequent to the issuance to these opinions, that
Honorable Hugh Parmer - Page 15   (JM-1142)




do not find any implied authority to create or participate
in retirement systems, absent explicit statutory     authority.
See, e.a., Attorney     General Opinions H-903   (1976); H-604
(1975); C-581     (1966); WE-283   (1957).   Nor can they be
reconciled with those opinions that strictly           construe
authority conferred     and find no implied power to provide
benefits generally,     absent explicit statutory    authority.
See e.a     Attorney   General Opinions JR-887 (1988); JR-543
(1986); ‘;M-406   (1985) ; JR-143 (1984); ME-592 (1982); H-535
(1975); WW-1373 (1962).

     Third, the holdings of these two opinions cannot be
reconciled with the strict construction     evidently   given
section 62 of article XVI.    When it was adopted in 1946,
subsection (b) of section 62 provided in relevant part .that
"[E]ach county shall have the right to provide       for and
administer a Retirement,  Disability and Death Compensation
Fund for the appointive    officers and employees     of the
county . . . .It The subsection made the creation of such a
fund contingent  upon the approval of a majority      of the
qualified voters of the a county.

     In 1958 the voters rejected an amendment to section     62
of article XVI of the Texas Constitution      that would have
expanded the scope of the section to include officers       and
employees of precincts.'   S.J.R. 6, Acts 1957, 55 Leg., at
1631. Even more, significantly, in 1962 the voters of Texas
defeated an amendment to subsection (b) to expand its scope
to include    "[e]ach county       nd anv    other    oolitical
subdivision of this State."      Ha&R.   36, Acts   1961, 57th
WJ., at 1314 (emphasis added). Subsection (c) of section
62 was added in.1966, which authorized the legislature       to
provide a pension plan "for all the officers and employees
of a county or other nolitical     subdivision of the State."
S.J.R. 4, Acts 1965, 59th Leg., at 2190. It was only after
this amendment    was    adopted    and   pursuant    to   this
authorization that the legislature      created   in 1967 the
statewide County and District Retirement System. Acts 1967,
60th Leg., ch. 127, at 240 (codified originally at V.T.C.S.
article 6228g and now codified at subtitle F of title 8 of
the Government Code). Clearly,,neither the legislature that
proposed the 1958 and 1962 amendments     nor the voters   that
defeated them assumed that the implied power to create
pension systems existed; if they had, the amendments      would
have been superfluous.

     Both Attorney   General   Opinions M-836   and    WE-215
contained faulty reasoning and relied upon authorities   that




                               p. 6026
Honorable Hugh Parmer - Page 16    (JM-1142)




do not support the proposition for which they were cited.
Accordingly, Attorney General Opinions M-836 and WW-215 are
hereby overruled.

     In m,    the court of civil appeals considered,   inter
a,    whether the LCRA had the implied power to increase the
compensation that it paid its officers and employees by four
percent and then set aside the four percent in a segregated
fund for the purpose of providing   a pension or retirement
plan for those officers and employees.  The court held that
it had the implied power, based in part upon its explicit
statutory power to compensate  employees.  For two reasons,
we conclude that m    does not control your question.

     First, keeping in mind'.that the purpose of the LdXA,
which is in part to provide electric power to consumers   in
much the same way that'an investor-owned utility does, it is
significant that the court employed the following  rationale
to support its conclusion:

        While designated      and    classified          a   ..,
        governmental    agency and body politiz        and
       corporate;- the Authority's' functions          and
        activities   partake, in large measure         the
        nature     and      characteristics,        within
        legislative     restrictions,    of    a     large
        industrial   enterprise,    rather than of       a
        strictly governmental .function. It has 'no
        power' to    levy    taxes," enact     laws    nor
        ordinances, as a city has; and its efficient~
        functioning depends in large measure on the
        sound judgment and good business management
        of its Board of Directors.      They have    large
        control over the operation of its properties,
        and the income to be derived therefrom, which
        constitute the only source of revenue to meet
        its obligations.       Of    necessity    matters
        relating thereto must be left in             large
        measure to their judgment,       experience    and
        discretion;    and obviously     could not      be
        prescribed ,in detail"by law.

           . . . .

            Retirement  pay from funds    ,~accumulated
        through the co-operative efforts of employer
        and    employee   are   now  well-established
        business practices    among practically    all




                               p. 6027
Honorable Hugh Parmer - Page 17    (JM-1142)




        large industrial enterprises;   and are being
        increasingly applied by national, state and
        municipal governments.  Typical instances are
        civil service employees, postal     employees,
        fire and police employees, etc.

185 S.W.2d at 467.

     The court clearly felt that the LCRA was not simply a
political  subdivision;  indeed, the Texas Supreme Court
decision that affirmed the w       judgment of the court of
appeals held for the first time that the LCM was tax exempt
from ad valorem taxes as a political subdivision.   Whatever
else may be said,about   appraisal districts,  they are not
analogous to industrial enterprises.

     We acknowledge     that the public policy     reasons that
impelled the court to conclude that the LCRA had an implied
power to create pension systems can apply equally to the
creation.of   pension. systems   for every sort of political
subdivision:   namely that such plans may encourage employees
to remain so employed,~,with the result that there is less
rnzloyee turn-over,     better service to the general     public
     ultimately less cost to the public. But it needs to be
rem&bered that, at the time that m         was handed down, no
other sort of pension     system or plan wasp available to the
employees of'the LCRL       An d it should also be remembered
that the court itself admitted that, while,pension       systems
for employees      had    become   nwell-established    business
practices"   among     practically    all   large     industrial
enterprises," it was only l@increasingly applied" to public
employees. The force of the rationale       that impelled that
court to create an implied power in 1945 is greatly weakened
in 1990 in the face of the fact that the legislature
explicitly has made provision for the retirement benefits of
special district employees.

     Second, for the reasons set forth in the discussion
above regarding  Vompensationl'  and implied power,   it is
obvious that the legislature has not assumed that, whatever
the ICRA might have implied power to do, all special
districts have identical implied powers.   If such were the
case, again, virtually all of the legislation enacted     in
this area would be unnecessary and superfluous.    a     may
stand for the proposition   that the ICRA has the, implied
power to create a pension system for its officers        and
employees: it does not stand for the proposition        that
special districts generally are so empowered.




                               P- 6028
Honorable Hugh Parmer - Page 18   (JM-1142)




     Instructive in this regard is Attorney General    Opinion
V-569 (1948), in which the state auditor asked whether       a
list of 31 special districts were authorized to participate
in the Employees Retirement System of Texas.       All of the
districts were created pursuant to section 59 of article XVI
of the Texas Constitution.   The opinion discusses the &Q&
case and sets forth essentially the same quotation set forth
above, describing  the LCRA8s functions and power,      before
concluding  that its employees were not authorized          to
participate in the Employees Retirement System, based upon
the statutory  definitions  of l'employeell and tldepartment"
that govern participation   in the retirement    system.    In
spite of the fact that the LCRA had been held to be an
agency of the state in b $       lo ad
McGraw, 83 S.W.2d 629 (Tez. 1935)      the opinion   concluded
that LCRA employees were not ~empl~yees    of the State"   for
purposes of the retirement system.     Reasoning by analogy,
the opinion held that      employees   of conservation     and
reclamation districts were not llemployees of the State"   for
purposes of the retirement system either. Curiously,       the
opinion referred to the "apparent" authority of the LCRA to
create its own retirement system, but failed to state that
conservation and reclamation districts    possessed the same
power:

           We note here that from reading Lower
        Colorado River Authority v. Chemical Bank and
        Trust Co., supra, the L.C.R.A. apparently has
        its own retirement system. In any event, the
        employees of this particular district would
        be precluded  from membership  in the system
        afforded by    H. B.    168 [the    Bmployees
        Retirement System of Texas], by reason of
        Section l.c., of H. B. 168 which defines
        'employee.'

           We are, therefore, of the opinion that the
        employees of the conservation and reclamation
        districts  named in your reguest are not
        eligible  for  membership   in the Employees
        Retirement System of Texas.

Id. at 7.

     The reason for the apparent failure of the legislature
specifically  to provide   for the inclusion    of  special
districts in the statewide plan for counties until     1967
probably stems from the fact that the proliferation      of




                              p. 6029
Honorable Hugh Parmer - Page 19    (JM-1142)




special districts    in Texas is a comparatively      recent
phenomenon.  As recently as February 1959, there were an
estimated 524 special districts   in Texas.   Of these,  115
were authorized by local law and 409 were created under some
13 general   laws   governing water    districts.   See   w.
Thrombley,  Special Districts and Authorities     in Texas,
Institute of Public Affairs, University of Texas at Austin
(1959). By 1979 there were over 420 special districts     in
Harris County alone. We think it significant that in a
treatise on public employee retirement in Texas written   in
1955, no mention is made of any implied authority of special
districts to create local pension systems, nor is mention
made of the LcRA case. See Swanson       8 Miskell,   Public
Employment Retirement in Texas, Institute of Public Affairs,
University of Texas at Austin    (1955). Indeed, the .only
reference to any so*     of retirement  system for specials-
districts in this 1955 treatise     is the federal Social
Security program. Id. at Table XIV, part III, at p. 91;

     Threes other arguments have been adduced, each, relying
upon misconstrued    ore ~misunderstood specific    statutory
provisions, in support of the "implied power" theory.' The
first maintains   that the facts that participation in the
County and District Retirement System is voluntary and that
the System's board must approve any such participation by a
special district, Gov't Code 0 842.001(c), necessarily   mean
that special districts have the implied authority to create.
their own local pension systems.

     This argument  is faulty in two respects.       One; it
ignores the authority conferred by statute       to    create
deferred compensation   plans and to participate      in the
federal Social Security program.      And two,   it wrongly
presupposes that a retirement   plan has to be offered to
employees in the first instance. In other words, it assumes
that the only choice a special district has is either to
participate in the County and District Retirement System or
to create a local pension system analogous        to    those
authorized by V.T.C.S. articles 62283 and 6243k.

     In fact, neither federal nor state law requires a local
political subdivision to create a pension plan. The federal
Employee Retirement Income Security Act of 1974, 29 U.S.C.
§§ 1001 et sea.     (llERISAn) does not ,govern local political
subdivisions.     Attorney  General Opinion H-618     (1975); 29
U.S.C. 5 1003(b).     And no provision in state law requires
local political      subdivisions,   except  independent   school




                                p. 6030
Honorable Hugh Parmer - Page 20   (JM-1142)




districts, to make participation   in a retirement   program
available to its employees: participation is voluntary.

     For example, in Attorney General Opinion H-1122 (1978),
this office held that a municipality that chooses to exempt
itself from the operation   of V.T.C.S. article 6243e, which
governs retirement systems for volunteer fire departments,
is not required   to create an alternate retirement   system.
In Attorney General Opinion H-903     (1976), in answer to a
question   asking whether employees of a hospital       whose
administration had been taken over by the county were
authorized to establish their own pension plan, this office
held that employees became automatic members of County    and
District Retirement    System if the county was       already
participating in the system or the county could elect to
discontinue participation in the statewide system and create
a local one pursuant to V.T.C.S.    article 62285. No other
alternative was available. Thus, in an instance in which a
special district is not authorized explicitly by statute   to
create a pension   plan, it may only do one or more of the
following: adopt a'deferred    compensation plan pursuant -to
statute, participate in the federal Social Security program,
again by statute, or participate in the County and District
System. Or it may offer nothing at all.

     The next argument misconstruing     specific  statutory
provisions  asserts that the existence     of_ what .,is now
codified as section 842.006 in the Government Code amounts
to a recognition by the legislature that special districts
have the implied authority to create local pension  systems.
That section provides:

           A local pension   system established   for
        employees of a subdivision may merge into the
        [County and District] retirement   system on
        conditions  prescribed   by the    board   of
        trustees [of the County and District Retire-
        ment System].

Section 842.006 is the amended version of what originally
was denominated  sections 10 and 11 in V.T.C.S.   article
6228g.

     Subsection (c) of section 62 article XVI, which created
the County and District Retirement   System, authorized  the
legislature to provide for a voluntary merger of subdivision
(b) "local systems" into the state system. Pursuant to this
authorization, section 10 of article 6228g, V.T.C.S.,    was




                              p. 6031
Honorable Hugh Parmer - Page 21 (JM-1142)




enacted to govern the merger of a .local county system into
the newly-created   state-wide  system.    It provided   in
pertinent part:

           The voluntary merger    into the     System
        established by this Act     (in this Section
        called the 'state system') of pension systems
        heretofore established under Subsection    (b)
        of Section 62     of Article     XVI of    the
        Constitution of Texas (in this Section called
        the 'local system') is hereby authorized upon
        the terms and conditions      stated in this
        section, and upon such additional terms and
        conditions as may be prescribed by the Board
        of Trustees of the state system, and after
        approval of the merger proposal      by    the
        governing body of the subdivision.

The only lllocal system11 to which this section could apply is
a local county system authorized       by subsection   (b) of
section 62.

     ~Section 11 of article 6228g, V.T.C.S., governed    "other
local systems" and provided in pertinent part:

           The voluntary merger into the state system
        created by this Act of pension         systems
        heretofore  or   hereafter  established    for
        employees ~-of subdivisions  as   hereinabove
        defined (exclusive of such systems     as are
        included within the provisions of Section X,
        above)13 is authorized to be effected     upon



      13. Subdivision 3 of section 2 of article      6228g,
V.T.C.S., defined %ubdivisionW in the following way:

           The term 'subdivision# means and includes:
        the several counties of this State; all other
        political  subdivisions  of this State now
        existing  or hereafter   established,    which
        consist of all of the geographical area of a
        county, or of all or parts of more than one
        county; the several political subdivisions of
        each county of this State which have the
                                        .(Footnota Continued)




                              p. 6032
Honorable Hugh Parmer - Page 22    (JM-1142)




        terms and conditions to be prescribed by the
        Board of Trustees of this state system, and
        generally in accordance with the provisions
        of Section X, above, so far as applicable.

     It   is argued that the existence         of this section
indicates legislative     recognition   that special districts
have the implied power to create         local pension   systems
because it is only to these systems      that the section could
refer. We disagree.      If, at the time that this section was
enacted, there were no other subdivisions that had explicit
statutory authority to create pension systems to which this
section could have applied, this argument might be more
compelling.   Such, however, was not the case.        s e.   a
V.T.C.S. arts. 4494i, 4494n      (now recodified as chaEterq.28;
of the Health 8 Safety Code); board of Manaaers          of the
Ha r s Count H 8 . ist. v.
J
for the Citv of Houston, 449 S.W.2d 33 (Tex. 1969); Attorney
General Opinion       WW-904   (1960) .   The fact    that   the
legislature enacted section 11 of article 6228g is not
evidence of legislative      recognition that special districts
that do not have the explicit statutory authority to create
local pension   systems    possess the implied authority       to
create them.

     The third argument. misconstruing   specific   statutory
provisions asserts that the existence of section 802.001   of
title 8. ~of the Government    Code indicates     legislative
recognition  that   special districts    have the     implied
authority to create local pension systems. We disagree.


(Footnote Continued)
        power of taxation;     and all counties    and
        cities operating a city-county hospital under
        the provisions of Chapter 383, Acts of the
        48th Legislature,.Reg-ular Session, 1943, as
        amended [V.T.C.S.' art. 4494i, now recodified
        as Health & Safety Code 55 265.011 - .016].
        The term also includes, for the purpose     of
        providing  similar coverage     for its    own
        employees,   the Texas County and District
        Retirement System.    But the term   'subdivi-
        sion' excludes   all incorporated  cities and
        towns, and all school districts and junior
        college districts established under the laws
        of this State.
    Honorable Hugh Parmer - Page 23   (JM-1142)
.




         Chapter 802 of title 8 of the Government     Code sets
    forth certain administrative  requirements governing   public
    retirement  systems,   and provides    that, with     certain
    specified exceptions,  all must register with the State
    Pension Review Board.   Subdivision (2) of section    802.001
    defines "public retirement   system" for purposes    of that
    chapter and provides:

               'Public   retirement   system'    means   a
            continuing,  organized program    of   service
            retirement, disability  retirement, or death
            benefits for officers or employees     of the
            state or a political subdivision,    or of an
            agency or instrumentality of the state or a
            political subdivision, other than:                   .

               (A) a program providing        only    workers'
            compensation benefits:

               (B) a program administered by the federal
            government;14,. /\

               (C) an individual    retirement account   or
            individual  retirement annuity within       the
            meaning of Section 408, or a retirement    bond
            within the meaning of Section 409, of the
            Internal ,Revenue .Code.. of;: 1986 (26 U.S.C.,
            Sections 408, 409):

               (D) a plan described bye Section  401(d)
            [sic] of the Internal Revenue Code of 1986
            (26 U.S.C. Section 401)~~~

               (E) an individual account plan consisting
            of an annuity contract described by Section
            403(b) of the Internal Revenue Code of 1986
            (26 U.S.C. Section 403);16




          14.   See V.T.C.S. art. 695g.

          15. &g V.T.C.S. art.      6252-3e, to      be superseded   by
    V.T.C.S. art. 6252-3g.

          16.   &8   V.T.C.S. art. 6252-5a.




                                   p. 6034
Honorable Hugh Parmer - Page 24   (JM-1142)




            (F)         eligible    state    deferred
        compensatizz plan described by Section 457(b)
        of the Internal Revenue Code of 1986       (26
        U.S.C. Section 457);17 or

            (G)(i) in Sections 802.104 and 802.105 of
        this chapter, a program    for which benefits
        are administered by a life insurance company;
        and

               (ii) in the rest of this chapter,  a
        program for which the on1 funding agency is
        a life insurance company. 18

     This section merely requires that all public retirement
systems, other than those programs      specifically   listed
above, must register with the State 'Pension Review    Board.
The list sets forth programs in which political subdivisions
have been authorized to participate explicitly by statute or
in which they arguably   may be permitted to participate    in
the future. It is not a list of programs in,which political
subdivisions have implied authority to participate nor does
it in any way constitute       an affirmative  conferral   of
authority to participate. in such programs.         Moreover,
section 802.105, which requires that each public   retirement
system register with the board, provides that registrants
must include "a c itation of the law under which the system
was created." Gov't Code s 802.105(b)(3) (emphasis added).
Obviously, any system whose authority was merely      imnlied
could not comply with this provision.    Thus it is evident
that the legislature did not assume that such implied
authority existedl9.



      17. See V.T.C.S. art.    6252-3f, to    be superseded   by
V.T.C.S. art. 6252-3g.

      18.   j&9 V.T.C.S. art. 6252-5a.

      19. It is suggested that the Internal Revenue      Code
itself confers authority on special districts to enter into
plans approved by the IRS. We disagree.      The form letter
that the IRS sends special districts       approving  a  plan
specifically disclaims  that it constitutes approval under
local law:
                                         (Footnote Continued)




                              p. 6035
Honorable Hugh Parmer - Page 25    (JM-1142)




     The final argument adduced to support the claim that
appraisal districts   have the implied authority  to create
local pension   systems does not misconstrue  any statutory
provisions.   Instead, it misapplies a rule of statutory
construction.   It is urged that, because the staff of the
State Property Tax Board, in its published newsletters  and
pamphlets, declared that appraisal districts were empowered
to create local pension     systems other than those whose
creation   is specifically    authorized  by statute,  this
administrative construction   should be given great weight.
We do not find this argument convincing.

     It is an accepted ,principle of statutory  construction
that the construction   placed upon a statute by the agency
charged with its administration is entitled to great weight,
Ex narte Roloff,    510 S.W.2d 913   (Tex. 1974): State v.:
Aransas Dock and Channel Co., 365 S.W.2d 220 (Tex. Civ. App.
- San Antonio 1963, writ ref'd), especially where contempo-
raneous, or nearly so, with the statute itself,    Burroubhs
V. Lvles, 181 S.W.Zd 570 (Tex. 1944); Stanford v. Butler,
181 S.W.Zd 269    (Tex. 19441.   But in this instance. the
application of this 'principle is undermined    because  the
administrative construction made by the staff of the State
Property Tax Board has not been consistent.

      As early as 1983, the pamphlet published by the agency
 entitled "Appraisal Board Manual: A Handbook for Countywide
 Appraisal District  Directors" provided     specifically  that
,appraisal districts could participate   in either the County
 and District Retirement System or a private retirement plan.
 Id. at 19-20. But even earlier, in an issue of the agency's
 monthly newsletter   ?3tatement," published   in August  1980,
 the agency  indicated that the only options available       to
 appraisal districts were participation in the federal Social
 Security program, the County and District Retirement System,
 or both. Id. at 9.

     Moreover,  the  application of  this principle          of
construction has been invoked in instances in which          an


 (Footnote Continued)

   This opinion relates only to the acceptability of the
   form of the plan under the Internal Revenue Code.  It
   is not an opinion of the effect of other Federal or
   local statutes.   (Emphasis added.)




                               p. 6036
Honorable Hugh Panzer - Page 26   (JM-1142)




administrative agency has construed    an act that it is
charged to administer.  In this instance, the State Property
Tax Board has no duties relative to any of the statutes
governing   the creation of pension    systems or deferred
compensation plans. Without regard to either the skill or
knowledge of the staff of the State Property Tax Board,
their administrative   construction  of these statutes    is
entitled   to no greater weight than the administrative
constructions of these same provisions by the staff of, for
example, the Texas Water Commission or the Department     of
Public Safety.

     We therefore conclude that appraisal districts have no
implied authority, absent specific statcltory authority,   to
create local pension systems. Accordingly, we conclude taat
appraisal districts may participate in the following: .the
federal Social Security program pursuant   to article   695g,
V.T.C.S., the County and District Retirement System pursuant
to chapter    842 of the Government    Code, and    deferred
compensation   plans authorized   by article   6252-3e    and
6252-3f,,V.T.C.S.   (to be superseded by article    6252-3g,
V.T.C.S., effective September 1, 1990). Appraisal districts
have no implied authority to create local retirement systems
analogous to those authorized by articles V.T.C.S. 6243k and
62283, which incorporated cities and counties, respectively,
may create. We turn finally to your second question.



     You wish to know what        will be the income       tax
consequences to individual appraisal district employees    and
the proper method of disbursing funds held in any retirement
plans in the event that any plans already       in place were
entered into improperly. The Texas Association of Appraisal
Districts conducted a survey of its members that     indicated
that, among the 254 counties of the state, 124 appraisal
districts offer "local retirement   plans."   If an appraisal
district created a local plan that was not authorized       by
statute, the apparent varieties as to contracts        entered
into, benefits    offered, system or plan administration,
restrictions   as to    participation,   years required    for
vesting,   employee contributions,    and appraisal   district
contributions are so great that an attempt would necessarily
require us to answer hypothetical questions     and engage  in
fact-finding, neither of which is permitted in the opinion
process. Accordingly,    we decline to answer your second
question.




                              p. 6037
Honorable Hugh Parmer - Page 27        (JM-1142)




     We are not unmindful of the possible consequences   of
our decision, but the consequences of legal interpretation
do not control.     Regarding  a matter of constitutional
interpretation, the Texas Supreme Court declared in Kov v.
Scheider, 218 S.W. 479 (Tex. 1920):

        No matter how far-reaching    and disastrous
        would be the consequences . . . we would not
        decline to make the declaration if such was
        believed  to be the true intent of       the
        language of the Constitution.

Quoted in Director of the DeD't of Asric. and Env't v.
Printina Indus. Ass'n. of Texas, 600 S.W.2d 264 (Tex. 1980).
--SheDherd   v. San Jacinto Junior Collece Dist., 363 S.W.2d
742 (Tex. 1962); Cramer v. ShenDard,   167 S.W.2d 147  (Tex.
1942). We are no less bound by this principle.

     The situation with which we are here confronted is not
altogether unprecedented.   When the legislature was apprised
of the fact that many appraisal districts in the state had
entered into long-term   lease agreements for the rental of
office space or entered into contracts for the construction
of buildings or the purchase of real property without     the
statutory authority to do'so, 'it enacted section 6.051 of
the Tax Code to so empower those appraisal districts.    Acts
1987, 70th Deg., ch. 55, S 2, at 147.     ,The remedy for the
situation with which we are here confronted lies with the
legislature.

     We affirm   the   result     of   Attorney    General   opin'ion
JN-1068.
                        SUMMARY

           Appraisal   districts   are authorized    to
        participate in the federal Social Security
        program by     article 695g,    V.T.C.S.,    to
        participate   in the     County and    District
        Retirement   System by chapter 842 of the
        Government   Code, and to create       deferred
        compensation   plans authorized   by V.T.C.S.
        articles   6252-3e and 6252-3f.       Appraisal
        districts have no implied authority to create
        local pension systems analogous       to those
        systems that incorporated cities and counties
        may create pursuant      to V.T.C.S.   articles
        6243k and 62283 respectively.       Because an
        answer to the question     as to the possible




                                  p. 6038
Honorable Hugh Parmer - Page 28    (JM-1142)




        income    tax   consequences  to   individual
        appraisal district employees of participating
        in a retirement system that is not authorized
        by statute would require us to both answer
        hypothetical questions and make findings of
        fact, we decline to answer your        second
        question.   We affirm the result of Attorney
        General Opinion JM-1068 (1989).

                                     Very truly yours,
                                           ,
                                     3-W
                                     JIM     MATTOX
                                     Attorney General of Texas

MARYRELIRR
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HI&                                      .
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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