PRICEDANIEL                A~ISTINaa.TXXAS
ATTORNEY
     GENERA,.
                             September 27, 1948

     Hon. Gee. H. Sheppard           Opinion’ .fto. V-692
     Comptroller of Pub&lo Aoo@uuts
     Austin, Texns                  ,Re: Chiriae        of    Board
                                         of h?ustees of      Riploj-
                                         eeb Ret&emeat       System
                                         to Coq&rol$er       to eq-
                                             able ttensfer of funds
                                            ,bJ Stite to the, Rm-


     Dear Sir:
                  Your recent requert ror an opinion      by this De-
     pertaent concmm the Mcrntion          that must    be contained
      in the eertifioate    o$ t&0 Wal4 of Trrulteee    of the $a-
     ployees Retirahent Spetem te the -#l&m               to enable
      the transfer   of fun&    ae kW oe~tributla?4        the Stats
     to the Employees Retirsmnt      Fund, Your 16 tf   ,er contaI4ed’
      the following:
                   “The question has ari@bg in this DsprPt-
           sent as to whether the St&to Board of Trustees
           shall certify     to the CemptreUer the total
           amount of the oompensation paid such members
           of the Retlreaent     Syatrm, or whether the Comp-
           troller    ie authorized   to aooept the certificate
           of the State Board Of Trustbb8 lfW6h CePt iies
           the amount of emp1oJQoI ii** pbr ,oent (5$ re-
           tirement deductions repente&t?~tbb          Retlreae;t
           Srsten for the payroll Or uj          ivwi month.
           shall therefore     thanlcyou .to a atVire~thtll ds-
           partme@ in the. oorreet pq6bduPb in the pre-
           misesa
                   Sect$on 62(a),   ktioto 16 OS t&Texas      Const’l-
     tution,     provtdes,’ In papt, a8 ?a~%ws:
                   “The Legislature   shall har~.~tlwrl ht
            to levy taxes to provide'a &tiF@!Wmt, 8is-                   1
           ability    and Death-Compensation Pimd for the
            appointive   officers   and ompl6feer of'the
           estate; provided that the vlbuted
Han rn (fee.   H, Sheppard,   page ~2 (V-692)




                   undred aftd Eighty Dollars
       for any such person.    (hphasis   added through-
       out)
          Article 62284 of Vernonqs Civil Statutes was
passed pursuant to the power @ahed     in Seotlon 62, Apt-
lcle 16 of the Constitution, papt of which iti quoted
above o Peptinent p~oviaions of Article   6228a ape%

       each member to th




            ‘1.  The ~plojoes   Saving Fund. - The
      Employees Saving Fund shall be a fund in
      which shall be accumulated   regulrr five pep
      cent (5$) contributions   from the comepnsa-
      tlon members, lnoludlng ourrent intepeat
      earnings O ContPibutiona to and payment
      from the Employees Saving FIlnd shall be
      made as follows:
             “a. Begimiry    on the date of the es-
      tablishment of the membership and full opera-
      tion of ‘the ftetirement gJ6tQm    rein oreat-
      ed, which data should br tVe (2“t to thme (3)
      months subsequent to the enactmerit of the
      Retirement Law, eaoh DQpartment of the State
      shall came to be deduoted from the 8alaPJ
      of each member on each and every payroll of
      such department of the State for ba
      every pa~oll    period, Sj.ve per cent ? 5sdoS
HOR.Gee.   II. Sheppard,   Page 3     (V-692 1


    his earnable compensation, provided that the
    sum of the deductions made for a member shall
    not exceed Cne Hundred and Eighty Bollars
    ($180) during any one (1) year.   In deter-
    mining the amount earnable  by a member in a
    payroll period,  the State bard  of Trushes
    may consider the rate of annual compensa-
    tion payable to such member on the first
    day of the payroll period as continuing
    throughout suoh payrell period,  and it may
    omit deduot2onm from compensation for any
    period less than a full payroll period if
    an employee was not a member on the first
    day of the payroll period,   OD
                     The Department head of the
    Statebihili   Gertsfy ts the State Board of
    Trustees on each and every payroll,   or in
    such other manner aa said Board may pre-
    scribe,   the amounts @a be deducted; and each
    or said amounls ahall be deduoted; ani when
    ddducted ~&all be paid into said lbrpleyees
    Saving Fund, e O e
           Y.ec,   8 11. Collectior     or   Contrlbutiens.
          “1. The collectlen  es members0 oentri-
    butions shall be aa SellewsS
           “b.    !i’he treasurer  or bpopmr diebum-
     ing officer      or each State &eprtmemt on
     authority from the department herd shall
     make deductions Srom aala&zis        0s the ela-
     ployees as ppovlded In this Act, and shall
     transmit monthly, OPat such time as the
     State Board of Trustees shall deoignate
     a certified      copy of the paJl‘ol1 and the
     amount specified       to be dbduoted Shall bs
     paid tb the Employees Sivlngs Fund OS the
     Employees Retirement System, aStar which
     the’ Executive Secretary of the Board ef
     TrrtN6      shall m&Pea rEN#d as all re-
     ceipts and turn payments over to the Treae-
     urer of the State of Texas and by him be
     credited to the Employees Saving Fad,          o o o
           '2, ‘The collection of the State’s
     contributions  shall be made as Sollews:
Hon.   Gee.   H, Sheppard,   paue   4   (V-692)



              “a* From and after the date of the
       establishment   ef the membership and full
       operation of the Retirement System creat-
       ed by this Act takes effect,   there is here-
       by allocated   and rpproprieted’tothe Rm-
       plogees Retirement System of Texas, in ac-
       cordance with this Act, from the several
       funds from which the employeea benefited
       by this Act; receive their reepectiv     sal-
       aries, a mm equal to five per cent %55)
       of the total oompmsatien paid to the said
       respective   emplo ees who are members of
       said Retirement 13ystem and whese compenea-




              “d. For the purpose  of computing
       the total   amount of the compensation  of




             From the provisions       of the Constitution   above
set out,    it  Is  apparent  that   a  matching of  contributions’
by the State of those made by,empleyees to the Employees
Retirement System was intended.           Bo one will doubt t&t
the intention      or the Legislature     In the enacting of Arti-
cle6228a, Vernonqs Civil Statutes,          was that of carry-
ing into effect      the provisions,     and the intent manifest-
ed therein,     of Section 16a, Article 16 of the Censtltu-
tion.    Any system under which the State would contribute
a different     amount from that aontrlbuted by the employees
would not be In accordance with the general scheme of
the law.      But a system under which the State contributes
the same amount as the employees would definitely            be with-
Ron. (too. H. Sheppard,   page 5   (V-690)


in the intent manifested In the aenstltutional         and leg-
islative   provisions.     The proper amount to be transfer-
red by the Comptroller to the Retirement Fund as the
contributions    of the State would be an aaount equal to
the contributions      of member employees, ao long as the
contributions    of member employees do not exceed five per
cent (5%) of the compensation paid by the State to the
Individual    employees and shall in no one ear exceed the
sum of One Hundred and Eighty Dollars ($I&) for any men-
ber . There are instances where a literal        compliance with
the provisions     made in aragraph a, Subsection 2 of Sec-
tion 8B, of Artlale 622 8a would result in the violation
of the constitutional      provisions   made in Seatlon 16a,
Article   16 of our Constitution.       For example, members
of the Retirement System who are 70 years of age or
older ana who have~been State employees for ten or more
years do net contribute      to the Retlrenmt    Fund, Their
pay, however, would be included in a ~ertlficate         of the
total amount of compensation paid to Retirement System
members. Under the prorlsl#n3         of the paragraph of the
Act above mentioned, th) Comptroller weold transfer an
amount equal to 5s of such pay Into the Retirement Fund,
the result be%blg a transfer       of State mmey into the fund
whea MI dontrlbution      had been made by members of the Re-
tirement System.
           A certificate    of the State Boar e Trustees
ef the amount of employees’ five peroent t5s f retire-
ment deductions reported to the ReOirement System fW
the payrell of any given month Is in eubetantlal       aeqll-
anob with the Act, and is more ef an sceurrte oertifloate
or ract upon whlah the Comptroller aa11 rltieatthe trans-
rer of State fads ceneonant with the legirlatlve        in-
tent than a certiriaate     0r the total amount of aonpen-
satlen paid to Retirement System mdbe~rs. Suah a aon-
struction  Is a modifiaation     or the literal meaning of
the language used in paragraph a, Subeectlon’2      of SSC-
tlon 8b of the Retirement Aat, ‘In order to carry out the
intent of the Legielat@re     &n a more logical  manner. we
are, therefore,    ef the opinion that the Comptroller aan
acaeBt the certificates     of the Board of Trustees of the
RetLrement System which aePtffy the ameuut ef employees1
fiti4 per cent (5s) deduotlene     reported to the RotirBment
System.   Such certificates    lay be rrrd a0 the baees rup
makl.nE the aontributione    of tha St8te to the Employeee
Retirement Fund.
Hon. Ooo. H. Sheppard,   page 6    (V-692)




             The State Comptrsller Is authorized
     to accept the certificate    of the Board of
     Trustees of the Employees Retirement Sys-
     tem which certifies    the amount of the five
     per oent (5%) deductions from the. aompensa-
     tion of aembcr employees reported to the
     Retirement System.     The Comptroller may use
     suah E certificate    as the basis for making
     the contribution    of the State to the Re-
     tirement Fund.
                                      Yours very truly,
                                  AmQluap ~BmRMa OF TEXAS


cBK:Eli




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