                             February     26,   1987



Mr. Marvin J. Titsman                           Opinion    No.   m-639
Executive  Director
Texas Surplus Property   Agency                 Re:    Whether members of the Texas
P. 0. Box 8120                                  Surplus Property    Agency Board are
San Antonio,   Texas   78208                    eligible    to participate     in the
                                                Employees Retirement     System

Dear Mr. Titzman:

      You ask whether     a member of the Texas Surplus          Property    Agency
Board is eligible   to earn retirement   service    credit   with the Employees
Retirement  System under the provisions      of section     23.502,   Title   llOB,
V.T.C.S.    Before   we cau address     your    question,     we must set        out
background   Information      about the Teachers      Retirement     System.     the
Employees Retirement     System. and the Texas Surplus Property         Agency.

       The Teachers    Retirement       System [TRS] was established          in 1937.
Acts   1937, ‘45th Leg.,     ch. 470, at 1178.        At that time the membership
of the TRS consisted       of all salaried’ teachers        employed by a board or
agency of au educational         institution    or organization     supported    by the
state.    Id. at 1178-81.      In 1949 the membership of the TRS was expanded
to inclurall      salaried      employees    of educational    organizations.       Acts
1949, 51st Leg.,    ch. 139, at 244, 247-40.            The statutes    governing    the
TRS are uow codified        In Title      1lOB. sections    31.001   through    36.204,
V.T.C.S.     Unpaid members of administrative             boards    have never      been
included   in the membership of the TRS.

      The Employees Retirement         System [ERS] was established        in 1947.
Acts 1947, 50th Leg.,      ch. 352, at 697.        Its membership consisted          of
any “regularly   appointed     officer     or employee   in a department      of the
State” who was employed on a basis or in a position            normally   requiring
not less than 900 hours a year.           Id.  Members of other public       retire-
ment systems.  including     the TRS, ze       expressly   excluded   from member-
ship in the ERS. -Id. at 697, 699.

      In 1971 the ERS statute         was amended to include  a provision    that
allowed  unpaid administrative         board members to claim   service   credit
vith the ERS for

            [slervice     as a Board Member of a statutory               Texas
            State     department,        agency.     or commission      having
            statewide      jurisdiction,         the employees     of which,
            under     requirements        of   lav,    are members of       the
            Employees      Retirement        System;    provided   that    such
            service     was not in a full         time    salaried   position



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Mr. Marvin    J.   Titsmsn    - Page     2    UM-639)




             but was subject        to       confirmation      by   the    Senate   of
             Texas.

Acts   1971. 62nd Leg.,    ch. 355, Il.               at    1332. codified      as art.   6228a,
64R.2.    The amount of the contribution                  to be made by an eligible         board
member was based ou the salary       paid             to the chief      executive   officer     of
the relevant    department    during  the              time for which the board member
claimed credit.     Id.
                    -

       In 1977 the legislature    amended the ERS statutes    so that adminls-
trative   board members were no longer        permitted  to establish     service
credit   with the RRS.     Board members who were already      contributing      to
the ERS. however,    were allowed   to continue   doing so. The 1977 legisla-
tion provided

             that any member of au administrative                   board of a
             statutory      state    department,      agency.    or commission
             as defined       in Section       48.2   [the 1971 legislation
             set    out above]        of   this    Act may, on or before
             December 31. 1977, become a contributing                 member of
             the Emnlovees Retirement             System of Texas and only
             persona   who establish          retirement     credit   for board
             service     during      December.      1977,    may continue      to
             establish      credit     for subsequent,       continuous   board
             service    in the manner prescribed              by that section
             and ourchase         his previous       service     in accordance
             wlth’the     terms of this Act.           (Emphasis added).

Acts    1977, 65th Leg.,   ch. 279, at 746.                    When the ERS statutes        were
recodified    as part of Title    1lOB in 1981.                the provision set out       above,
was recodified    in the following    form:

                  (a)     A member who established     during December.
              1977 t     service    credit    for administrative  board
              service     performed    during that month, say:

                        (1)   remain   a contributing      member of        the
                   retirement     system   accruing   service      credit    in
                   the employee class      for continuous     service     on an
                   eligible    board;  and

                        (2)   establish    service    credit         for    previous
                   service    on an eligible     board.

                  (b)    Contributions       for  administrative       board
              service    are computed on the basis        of the highest
              salary   paid during       the time for which credit         is
              sought    to an officer       or employee   of the agency.
              cosmission.       or   department   on whose       board    the
              member serves.

V.T.C.S.     Title   1lOB. Public        Retirement         Systems, P23.502.  Because your
question      requires    careful         analysis         of the 1977 amendment to the ERS


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Hr. Marvin     J.   Titman    - Page 3         (JM-639)




statutes,    we will refer    to the original         language of the 1977 amendment
rather    than the language     as recodified         at Title  1lOB. section    23.502.
See Title     1lOB. §l.OOl(a)     (recodification         is not intended     to make a
substantive     change in the law).

       Your question   involves  a person   who established     administrative
board service    during December 1977 as a member of the Veterans        Affairs
Conrmission and who in 1985, without       a break in administrative        board
serrrlce,  became a board member of the Surplus        Property   Agency.      You
ask whether this person is eligible      to remain a contributing     member of
the ERS under the 1977 amendment to the ERS statutes.            Before we can
address that issue we must explain      the unusual history     of the Surplus
Property   Agency.

        The Surplus      Property     Agency    was created       in December       1945 by
Governor      Coke Stevenson.       Letter    from Governor      Coke Stevenson       to Dr.
J.W.     Studebaker     of    the Federal      Security      Agency    (Dec.    18,    1945),
letters      of    Gov.   Coke Stevenson,        Texas     State    Archives.       Governor
Stevenson      created   the agency in response         to a request     from the federal
government       that Texas name a state           agency      to receive      surplus    war
property      from the federal       governxent.       Id.     Apparently     the governor
relied     on a 1943 statute       that gave the Kernor            war emergency powers
as his authority        for creating     such an agency.         Acts 1943, 48th Leg.,
ch.    142, at 223 (an act for             the organization         and coordination        of
defense     activities      in Texas);     see also      Tex. S. Con. Res.         33, Acts
1949.     51st Leg.,      Tex.   S. Con. Res.      33. at 1392 (stating            that   the
governor     set up the Surplus        Property     Agency under his war emergency
powers).

       In 1949 the legislature          passed a joint      resolution      requesting     the
governor      to continue      the Surplus    Property     Agency for the benefit            of
the state’s       schools    and institutions     of higher      education.      Acts 1943,
48th Leg.,       ch. 142, at 223.        The legislature       adopted    similar    resolu-
tions    at every subsequent         regular   session    of the legislature         through
1969.     Acts     1951, 52nd Leg.,       H.R. Con. Res. 66, at 1579 (broadening
the beneficiaries          of the donable     property     program to include          public
health     institutions);       Acts   1953, 53rd Leg.,        E.R. Con. Res.        110, at
1151; Acts 1955, 54th Leg.,             H.R. Con. Res. 101, at 1781; Acts 1957,
55th Leg.,      H.R. Con. Res. 46. at 1587: Acts 1959, 56th Leg.,                 H.R. Con.
Res. 81, at 1204; Acts 1961, 57th Leg.,                S.Con. Rer. 29, at 1202; Acts
1963. 58th Leg..          S. Con. Res. 12, at 1690; Acts 1965, 59th Leg.,                    S.
Con. Res. 7. at 1969; Acts              1967, 60th Leg.,        B.R. Con. Res.        97, at
2914; Acts 1969. 61st Leg.,             H.R. Con. Res. 24. at 3115.             See Terre11
Wells Swimming Pool v. Rodriguez,             182 S.W.2d 824, 826 (Texniv.               App.
- San Antonio         1944. no writ)      (a concurrent      resolution      does not have
the effect      of a statute).

       In 1971 the legislature       enacted    a statute   “establishing”     the
Surplus   Property   Agency.    Acts    1971.    62nd Leg.,    ch.    32,  at  59,
codified   at art.  6252-6b,  V.T.C.S.      A letter   from the TRS informs     us
that before   1971 the Surplus Property       Agency was treated     as a part of
the Texas Education    Agency and that employees       of the Surplus Property



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Mr. Marvin     J.   Titman    - Page 4          (34-639)




Agency were members of the TRSi          When the Surplus       Property    Agency
became a statutory    state agency in 1971, Its employees        continued    to be
covered    by the TRS even though       employees    of   the Surplus     Property
Agency no longer met the statutory       requirements    for membership in the
TM.     See
        -    V.T.C.S. Title 1lOB.  $32.001    (membership    of TRS).

       We think      that the legislature,            by failing       to act,      has by now
acquiesced       iu the treatmaut        of Surplus        Property    Agency employees         as
members of the TRS even though Surplus                     Property    Agency employees         do
not    meet statutory         requirements       for    membership       in the TRS.           See
Associated       Indemnity    Corp. v. Oil Well Drilling              Co.,    258 S.W.Zd 5%
529 (Tex. Civ. App. - Dallas              1953).   aff’d,      264 S.W.2d 697 (Tex.         1954)
(courts     inclined     to accept     administrz             agency’s     interpretation       of
statute    if accepted      over long period        of time wlthout         challenge).      Your
question.      however,     involves     the status        of a member of the Surplus
Property     Agency Board rather         than au employee of the Surplus Property
Agency.      The TRS has properly          told the board member in question                  that
it cannot accept        a contribution       from him because        unpaid administrative
board mambers do not belong            to the TRS.         The ERS has refused          to accept
a contribution        from him and has stated             that only members of adminis-
trative    boards whose employees           are members of the ERS are eligible                 to
contribute       to the ERS under section            23.502 of Title         1lOB.     To deter-
mine whether        the ERS has properly           refused      to accept      a contribution
from the board member in question                we must carefully           examine the 1971
and 1977 amendments to the ERS statutes.

        After December 1977 an administrative             board member could continue
to contribute       to the ERS only if he was on the board of “a statutory
state     department,     agency,     or commission”         as   defined     in the    1971
amendment.      To be a member of a board of a state                agency as defined     in
the 1971 amendment one ‘would have to (1)                     serve    as a member of a
“statutory”      state   agency;    (2)    serve    in a position         that was not a
full-time     salaried    position;     (3)   serve     in a position        that required
confirmation      by the senate;      and (4) serve with a board “the employees
of which,      under requirements        of law,      are members of the Employees
Retirement     System.”     See
                            -    Acts   1971.   62nd   Leg.,    ch. 355, at 1331.

        A member of the Surplus         Property   Agency board meets the first
three    of those    four   requirements.       Two months before       the effective
date of the 1971 amendment to the ERS statutes                  the Surplus    Property
Agency became a “statutory          State board.”       See Acts 1971. 62nd Leg.,
ch. 32, at 59, eff.        March 19, 1971 (establimng            the Surplus Property
Agency) ; Acts 1971. 62nd Leg.,           ch. 355, at 1331. eff.         May 25, 1971
(allowing    ERS service    credit   for administrative      board service).       Also,
Surplus     Property    Agency    Board members serve         without    pay and are
subject    to confirmation     by the Senate.      V.T.C.S.    art.  6252-6b,   51; see
also Attorney      General Opinion H-1221 (1978)        (construing    article    6228a.
14a.2).

     The fourth   requirement  poses a more difficult  problem.                        To meet
that requirement   a board member must serve with a board “the                       employees
of which,   under requirements    of law.  are members of the                        Employees



                                           p.     2893
Mr. Mirzin     J.   Titsmau   - Page 5         (JM-639)




Retirement   System.”   The employees     of the Surplus Property      Agency are
not and have never been members of the ERS.               An examination   of the
statutes   and relevant   legal   authorities,      however,  would lead one to
the conclusion    that Surplus   Property      Agency employees   are members of
the ERS “under requirements     of law.”

       The law provides         that,    except   for members of the TRS (with other
exceptions      not applicable        here),    all   state    employees     are members of
the ERS. Title         llOB, 022.003.         By statute,     the membership of the TRS
consists      of employees        of boards      and agencies        of state     educational
institutions        and organizations.            Nothing     In the      Surplus     Property
Agency’s     statute    makes it an educational           organization.        Thus, the law
appears     to require       that employees       of the Surplus        Property    Agency be
members of        the ERS.         Furthermore,      there     Is no statute         or legal
decision      that    would put someone ou notice                 that   employees     of   the
Surplus Property         Agency are members of the TRS rather                 than the ERS.
See Falls County v. Mires,             218 S.W.2d 491, 494 (Tex. Civ. App. - Waco
1949, writ ref’d)         (everyone     is presumed to know statutes)..            Therefore,
because    under the law as written,               employees     of the Surplus       Property
Agency should be members of the ERS. we think that the board member
you ask about comes within               the scope of the 1977 amendment and that
the ERS must continue           to accept contributions          from him.

       Also,   the 1977 amendment to the ERS statutes                  allows   admlnistra-
tive board mambers to make contributions                 after    December 1977 only for
“subsequent,      continuous       board    service.”      Acts    1977,    65th Leg.,    ch.
279, at 746.       The board member in question            has served on two different
boards,     but since       1977 he has been a member at all                 times of some
administrative       board.      It has been suggested           that “continuous      board
service”     should    be read to mean continuous              service     on a particular
board,    rather   than unbroken service           on a board or boards.          The phrase
is   indeed     ambiguous;      however,      because     the legislature        could   have
easily    required     “continuous      service     on the same board,”         we conclude
that    “subsequent’       continuous      service”     should    be construed       to mean
unbroken administrative          board service,       whether the service       is with one
board or more’than        one.

                                       SUMMARY

                   The Employees    Retirement     System must allow          a
             person who since   1977 has served without        interruption
             on the Veterans    Affairs     Cnmaission   and the Surplus
             Property    Agency Board to establish         service     credit
             with    the  ERS under     Title   llOB,    section      23.502,
             V.T.C.S.




                                                       JIM      MATTOX                  -
                                                       Attorney  General   of   Texas


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Mr. Marvfn    J.   Titman     - Page   6          (JM-639)




JACK EIGETOWER
First Assistant Attorney           General

MARYKELLER
Executive Assistant         Attorney   General

RICK GILPIN
Chairman, Opinion       Committee

Prepared    by Sarah Woelk
Assistant    Attorney    General




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