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             The Attorney      General of Texas
                         November 16, 1977




        Honorable Thomas S. Bishop           Opinion No. H-1092
        Major General, TexARNG
        The Adjutant General                 Re: Validity of policy
        Austin, Texas                        requiring State employees
                                             of Adjutant General's
                                             Department to retire on
                                             becoming eligible for two
        Dear General Bishop:                 annuities.

             You inquire about the validity of the retirement policy
        applied to the State employees in your department.  We note
        that your department supervises a large number of federal em-
        ployees by virtue of 32 U.S.C.A. § 709, but your request does
        not concern them.

             Your retirement policy is as follows:

                  10. Retirement.   a. Retirement Policies.
                  To establish an equitable retirement policy
                  that will encourage employees to take ad-
                  vantage of their earned annuities and there-
                  by enhance the upward mobility opportunities
                  of other employees to earn retirement bene-
                  fits, the following policy affecting retire-
                  ment of State employees will be implemented
                  by the Adjutant General's Department.

                        (1). Those employees who have earned
                  two or more annuities will be expected to
                  retire at the end of the month the second
                  earned annuity becomes effective, however
                  each potential retiree will have the option
                  to continue employment until 31 December of
                  the year in which these annuities are earned
                  (to include reduced Social Security at age
                  62). Such annuities will include any com-
                  bination of the following:

                       Active Military Retirement (Army,
                       Air Force, Navy, Marines, Coast Guard,
                       Merchant Marine)



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Honorable Thomas S. Bishop    - Page 2   (H-1092)



               State Retirement

               Civil Service Commission Retirement
               or Postal or Railroad Retirement

               Reserve Military Retirement

                (2). Retirement effective on 31
          December of any calendar year will enable
          an individual to defer lump sum payment
          of accrued annual and sick leave to the
          next calendar year for tax purposes.

Staff Memorandum l-l (PS) 1 September 1976. Although the policy
states that employees are *expected" to retire, it is adminis-
tered as a mandatory retirement policy. Employees are dropped
from the employment roles of the department by December 31 of
the year in which they are expected to retire. Thus, employees
must retire when they become eligible to receive, for example,
reduced social security at age 62, and State retirement, avail-
able at age 60 to persons with ten years of service. A more
common combination of annuities for State employees in your
office consists of reduced social security and reserve military
retirement, available at age 60 to persons with 20 years of
service. 10 U.S.C.A. 5 1331. You have provided us with statis-
tics about retirements pursuant to this policy for 1976 through
1978. Of 20 past and prospective retirees, the policy allows
three to work until age 65. One may work until 64, while the
rest must retire at 63 or earlier.

     Article 5781, section 8, V.T.C.S., provides in part:

            The Adjutant General shall prescribe
          regulations not inconsistent with the law
          for the government of his department. . . .

The Adjutant General's policies with respect to State employees
in his office must be consistent with State law. See Attorney
General Opinion M-719 at 7 (1970). Article 6252-14,V.T.C.S.,
provides as follows:

            No agency, board, commission, department,
          or institution of the government of the
          State of Texas, . . . shall establish a max-
          imum age under sixty-five (65) years nor a
          minimum age over twenty-one (21) years for
          employment, nor shall any person who is a
          citizen of this State be denied employment
          by any such agency, board, commission,
          department or institution or any political




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.   ..




            Honorable Thomas S. Bishop        - Page 3   (H-1092)



                       subdivision of the State of Texas solely
                       because of age; provided, [exceptions not
                       here applicable1 . . . .

            Sec. 2. We find no statute that excepts the Adjutant General's
            Department from the operation of article 6252-14, V.T.C.S.    Cf.
            Ed. Code S 13.903. This office has construed article 6252-140
            prohibit the establishment of a compulsory retirement age under
            65. Attorney General Opinion C-178 (1963); see also Attorney
            General Opinion H-753 (1975). Retirement bei%i?iErovided      by
            statute   generally become available at a particular age. See,
            -,      10 U.S.C.A. S 1331; V.T.C.S. art. 6228a, S 5; art. 6228b,
            S 2; art.   6228g, S 7.  Your policy mandates retirement at the
            point when an employee becomes eligible for retirement benefits
            under certain statutes. It thus indirectly links mandatory
            retirement to the achievement of a particular age. Since the
            relevant annuities may be earned as early as 60 and are usually
            earned before 65, we believe your policy effectively establishes
            a range of mandatory retirement ages, most of which are under
            65. In our opinion, your policy is inconsistent with article
            6252-14, V.T.C.S., and therefore invalid.

                                    SUMMARY

                       The policy of the Adjutant General's
                       Department that requires State employees
                       to retire when they become eligible for
                       two annuities, such as military reserve
                       retirement benefits and reduced social
                       security benefits, is inconsistent with
                       article 6252-14, and thus invalid.

                                              Very truly yours,




                                               ttorney General of Texas

         ,,APPROVED:



                                irst Assistant



            c. ROBERT HEATH, Chairman
            Opinion Committee

            jst

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