                       THEATGORNEYGENEIRAL
                                 OF       TEXAS

                                AUETlN      11,   TEXAS

    W’IIaL    WILSON
A’l-N,-CZENERAL
                                         July 24, 1962

         Honorable Henry Wade                     Opinion No. WW-1393
         District Attorney
         Records Building                         Re:     Whether a retired employee
         Dallas 2, Texas                                  of the Dallas County Retire-
                                                          ment System who elected to
                                                          take Option No. 1 on his re-
                                                          tirement can change his
                                                          retirement option to the
                                                          regular maximum upon the sub-
                                                          sequent death of his benefi-
         Dear Mr. Wade:                                   ciary.
                   You have requested an opinion from this office con-
         cerning the following fact situation:
                     "The Dallas County Employees Retirement
                System was established January 1 1948, in
                accordance with and under authori ty of Article
                16, Section 62, subsection b, of the Constitu-
                tion of the State of Texas. The rules and regu-
                lations necessary to make the system operative,
                were promulgated by the Dallas County Commis-
                sioners Court in consultation with and under
                the direction of a fully qualified and accred-
                ited practicjng actuary.
                     "Among the rules and regulations so estab-
                lished by the Court was one allowing a retiring
                employee to select one of the various options
                which would determine the amount of the retire-
                ment benefits. Thus, a retiring employee could
                select an option, whereby, for a reduced monthly
                benefit, his surviving beneficiary would receive
                ;;v;dentical.benefit as long as she or he might
                    . This 1s known as Option One."
                  In connection with the fact situation set forth hereto-
        fore you have posed the following question:
                     "May a retired employee of the Dallas County
                Retirement System who elected to take Option No.
                1 on his retirement June 30 1957, chame his re-
                tirement option to the regular maximum upon the
                death of his beneficiary in November, 1961. This
Honorable Henry Wade, page 2   (W-1393
                                    1


    would have the effect of substantially increas-
    ing his monthly benefits for the remainder of
    his life."
          In Attorney General's Opinion No. ~-1.58 (1947), this
office held that Section 62(b) of Article XVI, Constitution of
Texas, authorizing retirement and insurance programs for county
employees upon a majority vote of the qualified voters of each
county, was self-executing, and enabling legislation was not
necessary to make it operative. Attorney General's Opinion No.
v-158 (1947) further states that:
          "The constitutional amendment . . . clearly
     indicates that each county shall have the right
     to provide for and administer a Retirement, Disa-
     bility and Death Compensation Fund for the appoint-
     ive officers and employees of the county, provided
     the same is authorized by a majocity vote of the
     qualified voters of such county. (Emphasis added)
          Pursuant to Section 62(b) of Article XVI, Constitution
of Texas, the Dallas County Employees Retirement System was es-
tablished and certain rules and regulations have been promulgated
by the Dallas County Commissioners I Court for the administration
of such retirement system. One of such rules or regulations so
promulgated is found as a part of the "Retirement Benefit Elec-
tion" form upon which an employee specifies the retirement benefit
option which he desires. Such rule or regulation states that:
          II      After the first payment under a re-
     tirement'ailowance becomes normally due, the
     retired member shall not have the rieht to change
     the selected manner of cavment. . . .'I(Emphasis
     added)
          Consequently we are of the opinion that in view of the
rule or regulation of &he Dallas County Employees Retirement Sys-
tem, and so long as it remains in full force and effect, an em-
ployee who had elected to take Option No. 1 under the Dallas County
Employees Retirement System cannot change to another manner of re-
tirement benefit payment under such retirement system once such,
employee has commenced receiving retirement benefit payments.
Honorable Henry Wade, page 3   (~~-1393)




           Under the facts stated an employee of the
      Dallas County Employees Retirement System could
      not change to another manner of retirement bene-
      fitpayment once such employee had commenced re-
      ceiving retirement benefit payments under such
      system.
                               Yours very truly,
                               WILL WILSON
                               Attorney General of Texas



                                  Pat Bailey
PE3:st:wb                         Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Robert Rowland
Charles Lind
Robert Patterson
Fred Ward
REXIEWED FOR THEATTORNEYGENERAL
BY:   Leonard Passmore
