       THEATTORNEYGENERAL
               OF TEXAS
                 AURTIN.   ?,%XAS    78711



                   October 17, 1977




Honorable Joseph N. Murphy, Jr.              Opinion No. H-1073
Executive Director
Employees Retirement System of               Re: Qualification of
  Texas                                      members of the Judicial
Austin, Texas 78711                          Retirement System for
                                             retirement credit for
                                             service on domestic
                                             relations and juvenile
Dear   Mr.   Murphy:                         courts.

     You have requested our opinion regarding the consti-
tutionality of the Family District Court Act, V.T.C.S.
art. 1926a, Acts 1977, 65th Leg., ch. 859, at 2144, and a
number of related questions.

       The purpose of the Act is to substitute

              district courts of general jurisdiction,
              to be called family district courts, for
              the existing domestic relations courts and
              special juvenile courts.

Sec. 1.02(a). The statute also purports to transfer retire-
ment credit accrued by former domestic relations and juve-
nile court judges from the County and District Retirement
System to the Judicial Retirement System. Section 1.08(b)
provides:

              Each judge, at his option, may pay into
              the State Treasury no less than six percent
              plus interest of that salary that would
              have been paid to him had he been paid by
              the state for his full tenure on any court
              of domestic relations or special juvenile
              court. Upon such payment and the compli-
              ance with the transfer herein provided the
              judge will be given full credit for such
              tenure toward state judicial retirement.




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Honorable Joseph N. Murphy, Jr.    - Page 2   (H-1073)



           In addition for such full credit to apply,
         any judge of the family district court who
         elects to secure credit in the judicial re-
         tirement system pursuant to this section
         shall forfeit all rights to any county and
         district retirement system other than the
         reserves for the additional funds, if any,
         paid to district judges by the state, for
         the tenure for which credit is sought. Such
         county and district retirement systems shall
         transfer to the judicial retirement system
         all sums credited to the account of such
         judge except the amount paid in for such
         additional salary, if any, whether paid by
         the judge or by the employer, plus accumu-
         lated interest thereon, in such county and
         district retirement system. Such sum paid
         into the judicial retirement system by any
         county and district retirement systems
         shall be first applied against the judges'
         required six percent payment herein set out
         and any remainder shall remain in the General
         Revenue Fund.

You first ask whether section 1.08(b) is constitutional.

     In Attorney General Opinion M-830 (1971), this office, in
considering similar legislation, held that the Legislature could
not constitutionally authorize benefits under the Judicial
Retirement System to be based in part on services rendered as a
member of the County and District Retirement System. That
Opinion was premised upon section 62(a) of article 16 of the
Texas Constitution, which provided that persons participating
in a retirement system under article 5, section l-a, i.e., the
Judicial Retirement Sytem, were not eligible to partizte     in
any fund authorized by article 16, section 62(a), &,     the
                                        But see Letter Advisory
County and District Retirement System. --
No. 5 (1973).

     In April, 1975, the voters repealed article 16, section 62,
and substituted article 16, section 67 therefor. The latter
amendment now authorizes the Legislature to

          enact general laws establishing systems
          and programs of retirement and related
          disability and death benefits for public
          employees and officers.

Tex . Const. art. 16, 5 67(a) (1). In our opinion, the repeal of
article 16, section 62, together with the ratification of article



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,     .




    Honorable Joseph N. Murphy, Jr.    - Page 3   (H-1073)



    16, section 67, removes any doubt regarding the constitutional-
    ity of the kind of retirement provisions contained in the Family
    District Court Act.

         Section 1.08(b) authorizes a judge to "pay into the State
    Treasury no less than six percent plus interest of that salary
    that would have been paid to him had he been paid by the state
    for his full tenure on any court of domestic relations or special
    juvenile court."   (Emphasis added). You ask what rate of interest
    should be applied. In providing for the transfer of funds from
    county and district retirement systems, the statute requires pay-
    ment of "all sums credited to the account of such judge except
    the amount paid in for such additional salary, if any, whether
    paid by the judge or by the employer, plus accumulated interest
    thereon."   (Emphasis added). We believe this provision means
    that interest should be charged on the transferred funds at the
    rate it actually accrued while the funds were in the custody of
    the county and district retirement system. Under that system,
    interest accrues at varying statutory rates. V.T.C.S. art.
    6228g, SS 2(27) and 2(28). If the service was performed prior
    to the creation of the county and district retirement system,
    we believe that the system's policy to apply the legal rate of
    interest, defined by statute as "six percent per annum," V.T.C.S.
    art. 5069-1.03, is not unreasonable.

         Section 1.08(b) of article 1926a makes clear that all sums
    credited or attributable to the account of a judge should be
    transferred into the State Treasury to the credit of the Judicial
    Retirement System, whether such sums were "paid by the judge or
    by the employer." Furthermore, all transferred funds, regardless
    of source, should be credited to each member's account in that
    amount which would be standing to his credit if his service had
    actually been performed under the Judicial Retirement System.
    Any remaining balance is to remain in the General Revenue Fund.

                           SUMMARY

              That portion of the Family District Court
              Act, V.T.C.S. art. 1926a, Acts 1977, 65th
              Leg., ch. 859, at 2144, which transfers
              retirement credit accrued by former domes-
              tic relations and juvenile court judges
              from the County and District Retirement
              System to the Judicial Retirement System,
              is constitutional.




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Honorable Joseph   N.   Murphy, Jr.     - Page 4   (H-1073)



                                  Very truly yours,




                                                       Texas

APPROVED:




DAVID M. KENDALL, First Assistant




jst




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