                      The Attorney        General of Texas
                                    November 22, 1977
JOHN L.HlLL
Attorney
       General


                 Honorable Joseph N. Murphy, Jr.        Opinion No. H-1095
                 Executive Director
                 Employ@& Retirement System of          Re: Eligibility of
                   Texas                                certain county attorneys
                 Box 12337                              for participation in the
                 Capitol Station                        Employees Retirement
                 Austin, Texas 78711                    System.

                 Dear Mr. Murphy:

                      You have requested our opinion concerning the following
                 question:

                           Is a county attorney who receives compen-
                           sation from the State for performing the
                           duties of a district attorney eligible for
                           inclusion in the elective official class
                           of membership in the Employees Retirement
                           System?

                 You specifically refer to those county attorneys who perfo rre
                 the duties of district attorneys pursuant to article 332b- 1,
                 V.T.C.S., as amended by Acts 1977, 65th Leg., ch. 742, at
                 1866, and question the relationship of this amendment to
                 that of article 6228a, V.T.C.S., which establishes member-
                 ship criteria for the Employees Retirement System. Acts
                 1977, 65th Leg., ch. 279, at 745.

                      In Attorney General Opinion H-473 (1974) we ruled that
                 state-paid criminal district attorneys were eligible for
                 membership to the extent of their compensation from the
                 State. See also Attorney General Opinion M-1087 (1972).
                 The opinion was based upon our conclusion that a criminal
                 district attorney was a type of .district attorney and thus
                 eligible under section 3(B) (1) of article 6228a, V.T.C.S.
                 Pursuant to this decision, your office has adopted a pol-
                 icy by which a county attorney is eligible if he is per-
                 forming the duties of a district attorney and is paid by
                 the State pursuant to article 33213-1, V.T.C.S. Your
                 administrative construction of an ambiguous provision of




                                          p. 4494
Honorable Joseph N. Murphy, Jr.       - Page 2   (H-1095)


article 6228a, see Attorney General Opinion H-473 (1974), is
entitled to weight. Calvert v. Kadane, 427 S.W.2d 605 (Tex.
1968). Your question is whether this oolicv should remain
in effect after the January 1, 1978, effective date of the
amendments to article 6228a.

     The amendment to section 3A of article 6228a in part
establishes two classes of members, elective state officials
and appointive officers or employees, providing:

          [Tlhe elective state official class shall
          be all statewide elected officials, mem-
          bers of the State Legislature, and dis-
          trict attorneys receiving salaries paid
          by the state General Revenue Fund who
          choose to become members. . . . The
          elective state official class shall not
          include any other elective official of a
          district, county, or municipality, nor of
          the court systemof the State of-Texas.

Acts 1977, 65th Leg., ch. 279, at 745. The amended portion of
section 3A is virtually identical in relevant respect to the
provision under which your policy was adopted. Both versions
permit district attorneys paid by the State to become members,
while excluding other elective district and county officials.
The Legislature thus amended the statute without changing the
effect of vour administrative construction. and must be deemed
to have accepted it. Calvert v. Houston Lighting 6 Power Co.,
369 S.W.2d 502 (Tex. Civ. App. -- Austin 1963, writ ref'd
n.r.e.). Since the 'State is paying the salaries of the subject
attorneys, it would be reasonable for the Legislature to include
them within the membership of the Employees Retirement System
and to match their contributions which come indirectly from the
General Fund. We believe that the Legislature intended county
attorneys who perform the duties of district attorneys and are
paid by the State to be considered district attorneys under the
amendment.  Otherwise he might be precluded from receiving credit
for the state-paid service from any retirement system. -See
V.T.C.S. art. 62289, 5 6, 11(a).

     Our interpretation of the legislative intent with respect
to article 6228a, section 3A is supported by the language of
the amended article 332b-1. This statute provides in part:

          [Enumerated counties], in all of which
          counties there is either the office of
          criminal district attorney or the office
          of county attorney performing the duties




                            p. 4495
Honorable Joseph N. Murphy, Jr.        - Page 3   (H-1095)



            of a district attorney, the official
            performing such services shall be com-
            pensated for his services by the State
            in such manner and in such amount as may
            be fixed by the general law relating to
            the salary to be paid to district attor-
            neys by the State.

Acts 1977, 65th Leg., ch. 742, at 1866. Retirement benefits
are a form of compensation.  Byrd v. City of Dallas, 6 S.W.2d
738 (Tex. 1928). Consequently, article 33213-l requires that
the subject county attorneys be granted the same retirement
benefits as district attorneys, and in our opinion county
attorneys subject to article 332b-1 are eligible for membership
in the Employees Retirement System as elective state officials
under the amendments to article 6228a.

                         S U M MA.RY

            County attorneys governed by article
            33233-l are "district attorneys receiv-
            ing salaries paid by the state General
            Revenue Fund" within the terms of arti-
            cle 6228a as amended by Acts 1977, 65th
            Leg., ch. 279, at 745.




                                  'JOHN L. HIEL
                            i    " Attorney General of Texas
                                I~

APPROVED:




DAVID M. KENDALL, First Assistant
           4      "

  &A
c. ROBERT HEATH, Chalrman
Opinion Committee

jst




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