The Attorney General of Texas
August 7, 1979
MARK WHITE
Attorney General
Honorable Joseph N. Murphy, Jr. Opinion No. MW-40
Executive Director
Employees Retirement System of Texas Re: Credit of legislative service
P. 0. Box 12337, Capitol Station for judicial retirement.
Austin, Texas 787R
Dear Mr. Murphy:
You have requested our opinion regarding the crediting of legislative
service for judicial retirement. Specifically, you ask whether section 2B of
article SZZSb,V.T.C.S., is constitutionaL That statute provides:
i2B. The time served in the Legislature of the State
of Texas by any judge coming within the purview of
this statute shall be credited to the length of judicial
service.
In Attorney General Cpiiion M-830 (1971),this office, relying on the
Supreme Court’s decision in
Retirement System of Texx’
ttlhe Legislature may net constitutionally authorize
benefits under the Judicial Retirement System to be
based in part on services rendered as a member of
another retirement system.. . .
In light of this opinion, we believe that, at least in 1971,section 2B of article
6228b’was unconstitutionab
In 1975, however, the voters approved article XVI, section 67, of the
Texas Constitution, which, inter alia, authorized the legislature to “enact
general laws establishing systems and programs of retirement.. . .” The
subsection relating to the Judicial Retirement System now provides, in
pertinent part:
(d) Notwithstanding any other provision of this
section, the system of retirement, disability, and
survivors’ benefits heretofore established in the
constitution or by law for justices, judges, and
p. 116
. .
HonorableJoseph N. Murphy,Jr. - Page Two (Hw-40)
commissioners of the appellate courts and judges of the district and
criminal district courts is continued in effect.. . .
Attorney General Opinion H-1073 (1977) held that the ratification of article XVI,
section 67 was sufficient to remove doubt about the constitutionality of a statute which
permitted the transfer of retirement credit from the County and District Retirement
System to the Judicial Retirement System. The statute under consideration there,
however, section LOB(b)of article 1926a, V.T.C.S., had been origiiaRy enacted in 1977,
subsequent to the ratification of article XVI, section 67. By contrast, the statute at issue
here, section 2B of article 62284 was enacted in 1969, and has not been amended.
It is well established that a statute which is
forbidden by the Constitution at the time of its passage is
absolutely null and void, and is not validated by a subsequent
amendment to the Constitution authorizing it to pass such an act.
State ex reL Rogers v. Swanson, 219 N.W.2d 726, 729 (Neb. 1974). See also Grayson-
Robinson Stores, Inc. v. Oneida, Ltd., 75 S.E.2d 16l, 163 (Ga. 19531,cert. denied, 346 U.S.
823 0953); State ex reL Stevenson v. Tufly, 22 P. 1054 (Nev. 1890); Dullam v. Wilson, 19
N.W. R2 (Mich. %884). To hold that a constitutional amendment is curative of an
unconstitutional statute
would give the amendment the effect of enacting laws instead of
merely authorizing the legislature to do so, and it would be to.
enact a law to which no reference was made, and which the people
in adopting the amendment could.not have had in mind.
Bonaz v. Smith, 65 P. 309, 310 (CaL 19Ol). Unless the amendment itself specifically
validates a previously unconstitutional statute, as’in Hutchinson v. Pat&ii& 126SW. 1107
(Tex. 1910Xthe statute remains void and may be made effective only by reenactment
Grayson-RobinsonStores, susu at 164. We conclude, therefore, that section 2B of article
6228b is presently unconstitutionaL Accordingly, legislative service may not be credited
for purposes of calculating judicial retirement eligibility or benefits.
SUMMARY
Section 2B of‘. article 62284 V.T.C.S., which authorized the
crediting of legwlative service for purposes of calculating judicial
retirement benefits, remains unconstitutional and has not been
revived by the ratification of article XVI, section 67 of the Texas
Constitution.
@4fG%?&
Attorney General of Texas
p. 117
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Honorable Joseph N. Murphy,Jr. - Page Three (NW-40 1
JOHN W. FAINTER,JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
C. Robert
. Heath, Chairman
Dawd B. Brooks .
SusanGarrison
.Rick Gilpin ‘~“’ ..
Harry Green
William G ,Reid
Bruce
:;,Y Yqqblood
,~
p. 118