                 E             NEY      GENERAL
                               TEXAS
                     AUSTIN.   TEXAS    78711



                     November 25, 1969


Honorable Ed Keys                      Opinion No. M-520
County Attorney
Ward County                            Re:   ConstructJon of Article
Monahans, Texas                              6228g, Vernon's civil
                                             Statutes, relating to
                                             Texas County and District
Dear Mr..Keys:                               Retirement System.
           Your request for an opinion asks the folloulng question:
          "Does'subparagraph 2(a), Sec. 3, Art.
     6228g, T.R.C.S.; permit those employees who
     do not desire to enter into the Retirement
     Plan to'refrain from so doing by giving
     written notice to the Commissioners Court?"
          The retirement system for officers and employees of the
several counties and other political subdivisions created by the
provisions of Article 6228g, Vernon's Civil Statutes',was autho-
rized by the provisions of Subdivision (c) of Section 62 of
Article XVI of'the Constitution of Texas. Pursuant to such sub-
division Kc) of Section 62 7, the Legislature established a
system of-retirement, dlsabnity and death benefits for all of
the officers and employees of the several counties and other
political subdivisions of the State and of the various political
subdivisions of the several counties of the State known as the
"Texas County and District Retirement System."
           Subdivision 2 of Section 3 of Article 6228g, provides
in part:
           “2.   Participation of Employees.
          "The membership of the System shall be com-
     posed as follows:
         "(a) All persons who are employees of a
    participating subdivision on the effective date
    of Its participation In the System shall become
    members of the System as of that date; provided,


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Hon. Ed KeYa, Page 2 (M-520)


     however, that this provision shall not apply to
     ;I; prson, except by his consent, who ;; tshEf
        ec ive date of participation has a b i
     employment with the subdivision which would be
     violated by the requirement that he become a
     member; but each such person, being notified that
     the governing body has determined that the sub-
     division shall participate In the System, shall
     be deemed to have consented and elected to become
     a member of the System, unless prior to the date
     fixed for participation he shall file with the
     governing body, written notice of his election
     not to become a member. Any person so electing
     not to become a member, may at any time there-
     after during his employment by the subdivision
     and before he becomes fifty-eight years of age
     elect to become a member of the System as of
     the first day of the calendar month following
     filing by him with the Board and with the
     governing body, of notice of his wish to become
     a member, but in such event he shall enter the
     System without credit or claim of credit for
     prior service or other service, and shall for
     purposes of this Act be considered as a person
     entering the employment of the subdivision for
     the first time on the date he becomes a member
     of the System." (Emphasis added.)
          Subdivision 2 of Section 3 above quoted prescribes
the membership of the system and specifically provides that all
persons who are emplo ees of the participating subdivision (in
this case Ward County3 shall become members of the system on the
effective date of the subdivision's participation in the system.
There is only one proviso or exception, and the exception applies
only to an employee who on the effective date of participation
has a basis of employment with the subdivision which would be
violated by the requirement that he become a member. Such person
may waive his contractual right not to become a member of the
system. In other words, the proviso was included for the purpose,
In our opinion, to prevent the question arising as to whether the
provisions of Article 6228g abridged an obligation of contract by
excepting from its provisions those employees who have a contractual
right with the county which might be violated. This constitutional
question was removed. It Is our opinion that the proviso applies
only to persons (if any exist) who have a basis of employment with
the subdivision which would be violated by the requirement that he
become a member. All other employees automatically become members
of the system and have no right to refrain from becoming members.


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Hon. Ed Keys, Page 3 (~-520)


                     SUMMARY
         Under subparagraph 2(a), Section 3, Article
    6228g, v.c.s., all persons who are employees of
    a participating subdivision on the effective date
    of its participation in the Texas County and
    District Retirement System automatically become
    members of the system on the effective date the
    subdivision elects to participate In the system
    and cannot refrain from doing so, except in those
    instances in which the employee has a basis of
    employment with the subdivision which would be
    violated by the requirement that he become a
    member.




                                   General of Texas
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Fisher Tyler
Gordon Cass
Bill Allen
James Quick
MEADE F. GRIFFIN
Staff Legal Assistant
NOLA WRITE
First Assistant




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