                          AUSTIN.TEXAS
                                            .'

                        September 6. 1949


Hon. C. IL Cavness                   Op+ion No. V-896.
St+e Auditor
State C apitol                       Re:   Source of funds for admin-
Austin, Texas                              istration of Judicial Retire-
                                           ment System.

Dear Sir:                                   ._

              Your letter reads in part:

               ‘It is not clear to us wh,at funds may be
       available for expense necessary in the ad&G-
       tration of the Judicial ,Ret.irement Act. We shall
       be grateful for your opinion as to whether the
       $75.000.00 provided in House Bill 320 (the Judi-
       ciary Appropriation Act) for the benefit of H.B.
       33 can be so used. If not, from what source may
       such necessary expense money come?

               “It,appears that a part-time salary for
       one person is provided in the Appropriation Act.
       Certainly stationery, postage, office supplies,
       etc., will be necessary.*

                The people of Texas in 1948 adopted an amendment
to their Constitution which reads:

               “The Legislature shall provide for the
       retirement and compensation of Judges . . . on
       account of length of.service,, age, or disability,
       and for reassignment to. active. duty where and
       when needed. ” Article .v,: Section l-a.

               Pursuant to that constitutional mandate, the 51st
Legislature (1949) enacted House Bill 33. That Act provides for
such retirement.  Among other things it provides that the Chief
Justice shall administer the Act. Section 5 states in part:
Hon. C. H. Cavness,   Page 2 (V-896)




              “The Legislature shall appropriate
       such sums of money as may be necessary -to
       carry out this act.”

                Further recogniking.&at the system would require
administration   which necessarily entailed reasonable expend&
tures, Sectio J3 provides:

                “The Chief Justice of the Supreme
        Court shall be in charge of administering this
        Act and shall promulgate such rules and pro-
        vide such forms as he may deem necessary
        in order to comply with the provisions of the
        Act. . . . In order to carry out the provisions
       ,of this Act.Ithe Chief Justice is authorized to
        employ an assistant, Whose salary’wiil be set
        by the Legislature, and paid for from moneys
        appropriated for the Judiciary ‘pepartment.”

                The Judicial ‘Appropriation Bill (H.B. 320) was
amended on the floor of the Senate by the addition of a new sub-
division to be known& Judges Retirement:

               “1.~ Judges Retirement $75,OOOt $75;OOQ.

               “2. Administrative, equipment, postage,
       telegraph, telephone, furniture, $30.000; unex-
       pended balance.* Sb+e     Journal of May 23.
       1949, page.ll87. (The items~ repeated of cours~e~
       mean $75.000 for each of the ,years of the bien-
       nium and $30,088:for the~first year and the un-
       expended b&lance for the second year of the bi-
       ennium.)

                 The’~Houseand~Senate did not agree on many items
of the appropriation ,bill;’ in&u3ing the above. T~he‘bill was there-
fore sent to a.tionference’of House and Senate members.      As it
came out of the. Conference Committee, and as it was enacted in-
to law, it differed from the Senate’s version above. Item 6 of the
enacted appropriation to the Supreme Court reads:

               “Reporter and Assistant to the Chief
       Justice in Administering the Judicial Retire-
       me&Act    of 1949 ,, $4326.00 $4326.00*.’
_   .
                                                                                  787
        Hon. C. H. Cavness,      Page 3 (V-896)’      ,.’




                       Thenin the “JudicialSection’-‘-      Comptroller’s   De-
        partment,” Item 16:of the same Act reads:
                              .
                       “Apportionment to Judikiary Retire-
               ment System-asper     II-LB. 33. Acts 5fst Legis;
               lature RS. 1949 . . $75.990.09     ,$75.gOO.O0.”

                       The only other spetiific reference to judicial ietire-
        ment in the appropriation bill’is arider; Section 4. It reads:
                                        :
                       “Out of the funds~created by the con-
               tributions of the. Judges as provided in Sec. 5
               of,H.B. 33 . . . there is hereby~ appropriated
               such sum or sums’ of money as may be neces-
               sary to pay the accumulated contributions. as :
               provided inSec; 6 of said H.B. 33.”
                       .   :..
                  _:
                       The underscored, words of S&ion 4 above indicate
        that the money,therein referred to should be used,to spay retire-
        ment benefits. The inference is, that it should ‘not be .otherwise
        used.

                         The-matter therefore resolves itselfto the inter-
        pretation .of these provisions.   The’people in adopting Section l-a
                              ,.
        of Article V of the Constitution commanded the Legislature to ‘pro-
        vide for tlie”re’tireme,nt ~a& compensation of Judges.” House. Dill
        33 was thereafter enacted.which~s,aid that “The Legislature shall
        appropriate iuch’sums’of     money as may be necessary to carry out
        tliis Act.” The~appropriation’bill then provides for an ‘apportion-
        ment to the Judicial Retirement System as per .II.B. 33 . . . $75.000
              ”
        . . .

                        It must be presumed that the Legislature intended to
        do what the people in adopting. the, constitutional amendment voted
        should be’done. And, on the contrary, it will not be presumed that
        the eegislature~ intended to create a judicial retirement system but
        leave it kompletely crippIed for, ti& of funds to administer the
        system. The ,.%ief Justice~.wo~d~~ertai&ly not be expected person-
        ally to finance the org&iiation~of~the sys’tem from his ‘salary; nor
        could he divert appropriations of’the. Supreme Court to the admin-
        istration of the retirement system.
Hon. C. H. Cavness. Page 4 (V-896)




              ~Viewed in that light, it is our opinion that the appro-
priation which reads ‘Apportionment to Judicial Retirement System
as per H.B. 33’ was intended to be used for necessary administra-
tive expenses as well as to supplement the 5%. contributions of the
judges in making retirement benefit payments.

                  It will be noted that the Senate version of the bill di-
 vided~the appropriation into two items, the wording of which is sig-
.nificant. The items were “Judges Retirement* and “Adrninlstra-
 tive.”   (S.J. of May 23, 1949, p. l187). Apparently in a spirit of
 economy at the qlose of the session,, the two items were&ombined
 in the enacted bill, it undoubtedly being considered that the anuual
 appropriation of $75.000.00 was sufficient for both purposes. The
 appropriation as passed was not ‘simply, to “Judges Retirement”
 but was “to the Judiciary Retirement System as per S.B. 33.’ The
 appropriation to ‘the system” is broad in scope. .We interpret the
 appropriation as having beenmade to carry out the pr,ovisions of
 the Constitution and that portion of H.B, 33 which,authorizes an ap-
 propriation ~y,tocarry out this act.“’ As stated ,in your letter, “cer-
 tainly stationery. postage. office supplies, etc.. will be~necessary,*

                ‘We therefore.hold, and you are advised,that the
above Item 16 of the Judici~aryAppropriation Act (H.B. 320) which,
reads in. part Yappor,tionment to Judicial Retirement System,’ may
be used for the purpose of paying the.necessary expenses of the
Judicial Retirement System. It being; a lump sum approp,riation,
the necessary expenditures therefrom are left within the sound
discretion of the Chief Justice of the Supreme Court,upon whom
the Legislature placed the responsibility of administering the act,




                 The nece,s.sary.expenses of Chief Justice
        .of the Supreme Court, in initiating and adminis-
         tering the Judicial Retirement System are to be
         paid from Item 16 of the Judiciary Section, Comp-
         trollers Department (H.B. 320) which ‘reads,
Hon. C. H. Cavness,   Page 5 (V-896)                           789


       “Apportionment to Judiciary Retirement Sys-
       tem as,per H.B. 33.. . .”

                                           Yours veiy truly,

                               ATTORNEYGENERALOFTEXAS



                               ay;   @ti
                                           Joe R. Greenhill
                                            First Assistant

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                               &PROVED:

                                gi?!Jd

                               ATTORNEY        .GENERAL
