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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
p. 4487
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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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