             THE      A        JRNEY      GENERAL
                                  EXAS




Honorable Frank M. Jackson                Opinion No. M- 421
Executive Secretary
Teacher Retirement System of Texas        Re: Constitutionality
314 West llth Street                          of Section 14, Senate
Third Floor, Lowich Building                  Bill 110, 61st Legis-
Austin, Texas                                 lature,lg69,and
                                              related questions.
Dear Mr.   Jackson:
    you reoently requested the opinion of this office on the
following questions:
            “1,    Is Section 14 of Senate Bill 110, 61st
                   Legislature, 1969,in conflict wlth the
                   Constitutionof Texae?
            "2.    If your answer to question No. 1 is in
                   the negative, would persons who are
                   currently employed by the Texas Eduaation
                   Agency.,andwho transfer to the Commission
                   for Rehabilitationon September I, 1969
                   have the choice of remaining a member of
                   the Teacher Retirement System or becoming
                   a member of the State Employees Retirement
                   System with their beneflts governed by
                   Chapter 75, 54th Legislature, 1959?
            "3.    If your answer to question No. 1 is in the
                   affirmative,would all employees of the CCQI-
                   mission for Rehabilitationcreated by Senate
                   Bill 110, 61st Legislature, 1969,be required
                   to become members of the State Employees Re-
                   tirement System on September 1, 1969?
            "4.    If your answer to questions No. 1 and NO. 3
                   is in the affirmative,would retirementbene-
                   fits for persons who are currently employed
                   by the Texas Education Agency, and who on
                   September 1, 1969transfer to the Commission
                   for Rehabilitation,be governed by Chapter 75,
                   54th Legislature,'1955 as amended by Chapter
                   230, 56th Legislature,19591"



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Honorable Frank M. Jackson, page 2 (~-421)

      It is our oplnion that the answer to question one is
E   and the anawer to question two is YES.
     Senate Bill 110, 61st Legislature,1969, establishes
as an agency of this state, a Commission for Rehabilitation,
and prescribes its powers, duties, functions, financing and
procedures. Section 14 of the Act, the part in question,
reads as follows:
          "Personnelof the Division of Vocational
          Rehabilitationand the Division of Disabll-
          ity Determinationof the Central Education
          Agency hereby transferredto the Canmission~
          shall have the option of retainingmember-
          ship in the Teacher Retirement System of
          Texas or becoming members of the hployees
          RetirementSystem of Texas under the provi-
          sions of Chapter 75, Acts of the 54th Legis-
          lature, Regular Session, 1955, as amended.
          Bnployees hired after the transfer shall be
          members of the Employees Retirement System
          of Texas."
     The State Constitutionis not a grant of powers as is
the Federal Constitution,but la Instead a limitation of powers.
The Legislaturehas power to pass any legislationnot expressly
prohibited by the Constitution. Attorney Qeneral's Opinion
M-196 (1968). It Is necessary then to determine If the pro-
visions of~Secti.on14 of Senate Bill 110 contravene any limitation
contained in the Texas Constitution.
     The Texas Constitution,Article III, Section 48a, as amended
November 5, lz68,authorizes the creation of the Teachers' Retire-
ment 'System, ...to provide retirement ...for persons employed
in the public schools...". The definition of "public schools"
and "persons employed in the public schools," is left to the
Legislature. The Legislature has defined "public schools."House
Bill 241, 61st Legislature, 1969, states in Section 1.02(2):
                "'Public school' means any educational
           Institutionor organizationin this state which
           under the laws of Texas Is entitled to be
           supported wholly or partly by state, county,
           school district, or other municipal corporation
           funds."
     Article XVI, Section 62 of the Texas Constitution,as
amended November 5, 1968, authorizes the Legislature to provide



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    Honorable Frank M. Jackson, page 3 (~-421)

    for a State Retirement,Dlsablllty and Death CompensationFund
    for the officers tnd employees of the State, and provides that
    the Legislature, ...may make such reasonable inclusions,ex-
    clusions, or classificationsof officers and employees of this
    State as it deems advisable.::Further, it creates the Employees
    Retirement System of Texas, ...the rights of membership in
    which,,,shall be governed by the provisions herein contained
    and by present or hereafter enacted acts of the Legislaturenot
    inconsistentherewith."
         The employees of the Central Education Agency transferred
    by the terms of S.B.l10 to the Commission for Rehabilitation,
    are presently lawful members of the Teachers' Retirement System.
    The newly formed Commission for Rehabilitationis supportedby
    State funds, Is for educationalpurposes, and is, in our opinfon,
    well within the definition establishedby H.B. 241, for a "public
    school"; therefore, the transferredemployees are qualified to
    remain members of the Teachers' Retirement System.
         The provisions of Article XVI, Section 62, empower the
    Legislature to "make such reasonable inclusions,exclusions,or
    classificationsof ...employees...asit deems advisable,"and
    to determine "the rights of membership" in the State Employees'
    Retirement System. The provisions of Section 14 of S.B. 110
    providing that new employees of the newly formed Commission for
    Rehabilitationwill becane members of the Employees' Retirement
    System Is an exercise of this power.
         The Legislature has deemed it advisable to classify per-
    sonnel being transferred frcm the Central Education Agency, to
    the Commission of Rehabilitation,as one group of state employees.
    The Legislature has deemed it advisable to classify employees
    hired after the transfer, a second group of state employees. The
    Legislaturehas delegated to each state employee in the first
    group, the power to Include himself in, or exclude himself from,
    participationin the state employees' retirementplan. The choice
    to exclude himself is, in effect, a choice to remain in the
    Teachers' Retirement System.
         The Legislature has not delegated a power of choice to those
    employed after the transfer,but has included this second group
    of employees In the State mployeesl Retirement plan. This Legis-
    lative Inclusion automaticallybars the second group from partici-
    pation in the Teachers' Retirement System.
        The employees of the new Commission for Rehabilitationare
    employed in the "public schools" and are state employees. The


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Honorable Frank M. Jackson, page 4 (M-421)

Legislature could have placed these employees In either of the
two retirement systems: furthermore,no problem of prior service
credit would have existed.
     Article XVI, Section 63, of the Texas Constitutionprovides
for reciprocationof service credits for employees transferring
from either of the above retirementssystems to the other.
     The only restriction imposed by the Constitution is that
no employee may be a member of both systems at the same time.
There Is no constitutionalprovision which prevents the Legls-
lature from allowing employees to exercise their own choice con-
cerning which system they desire, provided they are qualified
for both systems.
     We find nothing to Indicate that the classificationsmade
by Section 14, of S.B. 110, are unreasonable,and therefore we
snswer your first inquiry in the negative and your second in-
quiry in the affirmative. In view of our answers to the first
two questions, it is unnecessary to answer your third and fourth
questions.

                    SUMMARY
              Section 14 of 'SenateBill 110, Acts of
         the 61st Legislature, 1969,Is not in conflict
         with the Constitutionof the State of Texas.
         Personnel of the Texas Education Agency, trans-
         ferred to the Commission for Rehabilitation,
         on September 1, 1969,have the option to remain
         a member of the Teachers' Retirement System or
         to become members of the State Employees' Retire-
         ment System.




                                      ney Qeneral of Texas
Prepared by Samuel D. McDaniel
and Tom Neely, Assistants
Attorney Qeneral




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        Honorable Frank M. Jackson, page 5 (~-421)

        APPROVED:
        OPINION COMMITTEE
        Kerns Taylor, Chairman
        George Kelton, Vice-Chairman
        Robert C. Crouch
        Ray McGregor
        Bill Corbusier
        Ralph Rash
        HAWTHORNE PHILLIPS
        Executive Assistant




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