Untitled Texas Attorney General Opinion

August 209 1969 Honorable Gordon H. Lloyd Executive Secretary Board of Trustees Employees Retfrement System of Texaa Capitol Station Austin, Texas 78711 Opfnfon No. M-450 Reg Constitutionality of allowing credit time for certain Military Service under Art. 6228a, V.C.S., per- formed prior to state employment (H.B. 1065, Chap. 814, page 2433, Acts of 61st Leg., 1969 1. Dear Mr. Lloyd: On September 1, 1969, House Bill No. 1065, Chapter 814, Acts of the 61st Legislature, Regular Session, page 2433, will become a law. Your Board of Trustees of the Employees Retlre- ment System of Texas has requested an opinion concerning the constitutlonalfty and application of House Bill 1065. From consideration of the above requests you desire the answer to two questiona: 1. Whether it fa constltutfonal for the Legis- lature to provide that members of the Em- ployees Retirement System receive credit for retirement servfeep for time spent as a member of the mflftary service, during the time the United States was or fs in- volved fn organized conflict, whether fn a state of war or a police action lnvolv- ing conflict with foreign forces, or for reason of criefs within this country. -2235- . Hon. Oordon Ii. Lloyd, page 2(M-450) 2. What members of the Employees Retfrement System are excluded from recefvfng credit for mflftary servfce under House Bfll No. 1065% In answer to your ffrst question, we hold ttia't'it, is constitutional for the Legfslature to provide that members of the &ployees Ret%rement System recefve credit for retire- ment services for tfme spent a8 a member of the military ser-' vice, as set forth in House Bill 1065. Article XVX, Sectfon 62, Texas Constitution (adopted Nov. 8, 1966) reads, in part, as follows: "(a) The Legislature shall have the authority to levy taxes to provide a State Retirement, Msabflity and Death Compensation Fund for the officers and employees of the State, and may make such reasonable fnclusions, or classi-' fications of officers and employees of this State as It deema advisable. House Bfll 1065 is a reasonable inclusion of a class of state employees or officials who have served their state and nation fn the mflitary service prfor to befng employed by the state, We hold that the Legfelature may legally allow credit to members of the Employees Ret%rement System for prior m%l%- tary service because it serves a beneficent and useful govern- mental function and stfmulates and rewards fafthful public service. See reasonfng fn Attorney General's Opinions M-138 (1967), M-408 (1969), and M-413 (1969). Furthermore, the Legislature in House B%ll 1065 found that such Bfll, In p.ro- vlding credft for prfor m%l%tary servfce was for a publfc pur- pose, as it stated fn the Emergency Clause "that the provi- sions of this Act w%Pl provfde the State wfth more experienced personnel and wfll fnduce continued servfee to the State,:.,' As is outlined fn the above cfted Attorney General's opinion's, a statute such a8 R.B. 1065, serves a beneffcent and useful governmental functfon $n its propensfty for stimulating and rewarding faithful publfc servfees. As stated above, the Legislature found that aafd B%l% was for a publfc purpose. The determination of publfc purpose fs prfmarfly a legislatfve function and will not be reversed unless manffestly arbitrary. -"E236- Hon. Gordon H. Lloyd, page 3 (M-450) The fact that individuals are benefiltedfrom funds expended therefor is immaterial. See Attorney General Opinions Nos. M-391 (1969) and C-530 (1965). Thus prospectively applied, the Act is not fn violation of Article I, Sectfon 16 or Sections 44, 51, or 53 of Article III, Constitution of Texas. It does not fnvolve a gift for private or Individual pur- poses. A sfmilar statutory amendment providing for such military service credft for teachers retirement was enacted in 1961 (Article 2922-1, Section 4, Vernon's Civil Statutes) and has been allowed by the Trustees of the Teachers Retire- ment System since that time. In view of the settled rule that all doubts as to con- stitutionality are resolved In favor of the statute, we con- clude that it is constitutional. 53 Tex. Jur.2d 277, Statutes, Sec. 184. As to the second question of what members of the Em- ployeesRet%rement System are excluded from receiving credit for military service, Section 2, of H.B. 1065, supras sub- section (c) reads as follows: “(Cl Notwithstanding any other provision here- in, no person, otherwise eligible for cre- dit for mllftary service herein, shall be eligible to such credit if such person shall be receiving or hereafter receives any military retirement provided by any federal law or regulation or federal re- tirement act, for at least 20 years ac- tive duty.’ (Emphasis added. ) Those members of the Fmployees Retirement System who re- ceive OP hereafter receive any military retirement from the Federal Government, for at least 20 years active duty as a mem- ber of the Armed Forces of the Unfted States (as distinguished from the members of the Reserve Forces of the United States or National Guard) are excluded from receiving credit for mili- tary service, and th%s exclusion is a reasonable exclusion under the provisions of Article XVI, Section 62, Texas Consti- tution. Our reasoning as to this conclusion Is baatd on the use of the words "for at least 20 years active duty in sub- section (c) of H-B. 1065. "Active duty" connotes full-time service as a professfonal member of the military forces of the -2237- . Hon. Gordon H. Lloyd, page 4 (M-450) Fedesal Government, while service In a Reserve or National Guard component Involves only limited active duty periods during summer camps, service schools, drill days and similar periods of active duty training. 10 U.S.C.A. 1333. Under H.B. 1065, persons who have been or are relieved from ac- tive duty by a dishonorable discharge are also excluded from receiving credit for military service. SUMMARY H.B. 1065, Chapter 814, page 2433, Acts of the Regular Session, 61et Leg., 1969, la constitutional, and allows credit for retirement service for military service prior to state employment, for members of the Rnployees Retirement System of the State of Texas. This statute validly per- mits members of the Rmployees Retirement System to receive credit for retirement service for service in the military for- ces as set forth in H.B. 1065. Those members of the Employees Retirement Sys- tem who receive or hereafter receive any military retirement from the Federal Government, for at least 20 years active duty as a member of the Armed Forces of the United States (as dlstlnqulshed from the members of the Reserve Forces of the United States or National Guard) are ex- cluded from receiving credit for military service. Under H.B. 1065, persons who have been or are relieved from active military duty by a dishonorable discharge are also excluded from credit for military service. eneral of Texas Prepared by Roger Tyler Assistant Attorney General -2238" . . Hon. Gordon H. Lloyd, page 5 (M-450) APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman George Kelton, Vice-Chairman Houghton Brownlee Harold Kennedy Neil Willlams IQU%S Neumann W. V. GEPPERT Staff Legal Assistant HAWTHORNE PHILUPS Executive Assistant -2239-