           Hon. Hall H, Logan, Chairman                Opinion       Ro, V-3&?
           ‘State Board of Control
           Austin,  Texas                              Be:     whether enlpla~4iir
                                                               seventy    ye%re of
                                                               age or over io
                                                               state   semi00     oa
                                                               SQtember      1, 3.947,
                                                               must withdraw      frm
                                                               State   eenioQ     au a
                                                               conditloa    to cf(gLta
                                                               and beneri,ts    ab the
                                                               Retirement     %yrJte&
           .bear   %ir:
                          Your letter    of July      18,    1947,    requests   an ,@y&-
           iOn 01p the     following    questions:
                           ntBhether those employs&e now seventy
                   ,(‘7O) years or over will be required      to Nave
  .. .             state    Service  to enable them to obtain the
                   right,s and benefits     of the Retirement   Sys*.
                   tern, n
                        Your question       arises     under  House Bill 'i613, A&a
           ‘50th Legislature,    1947,      Ohapter     352 page 697, settlag     up
           the Employees Retirement          System     of 4 exa&
                        Rmljloyeas seventy     years of age and over w$ith
           ten or more gears of service         on September         lp X94”?, tke
           date upon wuch the Act beCCU.laS efie,Ctive,                and who be-
           ooam aetsbera of the System, are governed               by the provis-
           $ona of Section      30 of the Aot,        Its provisions       are in
-:’   ,,   literal    conflict   with Section     SA,    hereinafter      referred
           to, but since Section       3G only applies         to employees       over
           sixty   years or age, with ten years of servYce who %re 2a
           service    on September    1, 1947, it will oontrol,            as a ape,-
           oial provision,      over the more general          provisions      off %ee-
           tfon 5A. Section       30 provides:
                         vdxiy em loyee who has attained  the age
                   of sixty   (60 P years and has had ten (10) or
                   more years of service    when this Act becomes


                            ‘,.
Xo& hall          P, Logan,      Page 2,       V-342,


        effective,       and who elects       to become a membar
        of the System, may remain in the Statess                      ser+
        vice past the age of sixty-five                 (65) years            ’
        as long as he is oapable             of serving       the State
        efficiently       in. any position        in which he is em-
          lo ed, but upon attaining             the age of seventy
        ‘I,70 s years such employee shall             cease to be a
        participating        member of the Retirement              System
        and shall, become ineligible              to reoeive any bsne-
        fits    from the System except            such benefits        to
        which he would have been lawfully                 entitled       if
        he had retired        at the age of seventy             (70) yeara)
        provided ) however 3 no person shall                ever become
        e11gibla      for a service      retirement       allowance        un-
        tiJ, he has actually        retired      from the State’s
        servtoe L”
           ‘ff~ dearly appears    from the foregoing    provj,#,+
,&as that such an employee is not’ required       to lea~va the
service  in order to obtain    the benefits   of the Act w&en                       ,,
he Later ,retiress
               As     to those employees sevpnt,y yesre of age a&d
ovarwith       less     than ten years of service,  who beaome merem*
berg,    S@d,c@       Zjg~~pro~Sdsa.   that.     %o     member   shall   be   en-
t$ta$ad~~‘to a ~re~tir$me~~~ e2Uwsn~oe @Ml he has aosuukulb$$&
tati jlOj’ ,or more years of creditable         servioe  in. ‘&zes $
Pro~islor#    tax oth6.r benetits~     Unde.r the AMA a&so S       g$,,.
ten ~yeafa of eervEce,        Such an employee me~mbar             w&
therefore.   qualif     for benefsts     should he parmsfi         i9#t&e
the Statev’e fgexv?;oe~b He may qualify’ for benefits          OU%$ $C
ha ooapletes     the required    ten yes&s ot serviato % 4w.p         $0
is prevented,      bsoause  of his age s from continrz ns, h st$~
vise and rrom accumulating         creditable    service  by other
provisions    of the l.aw+
             Se~tkoion 5A appears   to a ‘ply to all, other mem-
hers seventy     years  of ages Xnclud Png those already      in
tha servile.   of: the SGaW en September       L3 194?+ wZbiz ~LMB
bhan ten yearP of servioe,       on that date,    xt ptov$dee    in
partn
    .




                      ftis   noted that this provision    requires    @rsr
        tireEls4t"r      How89er) if nretirementn   mey not 'be aocciu-
        p Whsd
             ,.     under the Aot as to such person,    th,is provislom
          s sot deemed to apply to such person until         auoh ti,gne
        ap,it:is,LegakXy possible,      under the Act for hia to "r@-
        tue ,1*
                    “Retirement”      , bp the terns    of %&ion      10,
        @@hall mean withdrawal         frum ser~ioe    with a reti,r?el2#r4%
        allowa,nce Erasted      un,der the pr         0~s of t&3,s,Act: v
        &nphmsis' ~suppliad)("       S&We a'          ement allo~no~@'~ay
        not bs grante:d to a member with 'less than ten .$aaz-s of
        or&tsblw     ser9i~c,e, retirement      cannot be a~csomplishad;
        and,~ ths?Wore,     though he be o9e.r ae?@nty yea~rs ar e&:8,
        &eotQin, 5A wotid not apply ,until         such a inember 'has aa-
        otunalated  auoh tte4 years or sfwriee,,

.
                    It appears,    therefore,      that in&ead    of quali-;
        iyFag a membsr seventy      years of age with less tha4 te4
        gH~mr*sof @a-vice for benefits         under the Retiriamsnt   ws;
        tam, his leaoig     the servioe       permanently   would preva4t
        hL partioigatior+     in the benefits        of the Bob.


                     lbup$ogees 70 years of age or oldelr in
              State    se&ice    on September   1, 194'7, who bei
              o:ome members of the Reti~rement System of
              Texas, a,nd who on that date, have 10 years
              of service     with the State,   are not corngel
              led to retire      on that date in order to ob,-
              tein the benefits       under the System upon latar
              retirement,
                    In order to qualiry      rQr benefits    under
              the Ratiremant    Act, employees      70 years o;P
              age or older in State      service    on Ssptambea
              li 1947, tmt'with less than 10 years or 8ez*
              9168 on that date,    muat bsoama members and
              must continue   in service     nnt,il they haV@ 10
              years of service,
                                        YOuFS Very truly
                                   ATTORNEY(ZEN&AL OF Tl!X&S,
