THE A JRNEY GENERAL
EXAS
Honorable Frank M. Jackson Opinion No. M- 421
Executive Secretary
Teacher Retirement System of Texas Re: Constitutionality
314 West llth Street of Section 14, Senate
Third Floor, Lowich Building Bill 110, 61st Legis-
Austin, Texas lature,lg69,and
related questions.
Dear Mr. Jackson:
you reoently requested the opinion of this office on the
following questions:
“1, Is Section 14 of Senate Bill 110, 61st
Legislature, 1969,in conflict wlth the
Constitutionof Texae?
"2. If your answer to question No. 1 is in
the negative, would persons who are
currently employed by the Texas Eduaation
Agency.,andwho transfer to the Commission
for Rehabilitationon September I, 1969
have the choice of remaining a member of
the Teacher Retirement System or becoming
a member of the State Employees Retirement
System with their beneflts governed by
Chapter 75, 54th Legislature, 1959?
"3. If your answer to question No. 1 is in the
affirmative,would all employees of the CCQI-
mission for Rehabilitationcreated by Senate
Bill 110, 61st Legislature, 1969,be required
to become members of the State Employees Re-
tirement System on September 1, 1969?
"4. If your answer to questions No. 1 and NO. 3
is in the affirmative,would retirementbene-
fits for persons who are currently employed
by the Texas Education Agency, and who on
September 1, 1969transfer to the Commission
for Rehabilitation,be governed by Chapter 75,
54th Legislature,'1955 as amended by Chapter
230, 56th Legislature,19591"
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Honorable Frank M. Jackson, page 2 (~-421)
It is our oplnion that the answer to question one is
E and the anawer to question two is YES.
Senate Bill 110, 61st Legislature,1969, establishes
as an agency of this state, a Commission for Rehabilitation,
and prescribes its powers, duties, functions, financing and
procedures. Section 14 of the Act, the part in question,
reads as follows:
"Personnelof the Division of Vocational
Rehabilitationand the Division of Disabll-
ity Determinationof the Central Education
Agency hereby transferredto the Canmission~
shall have the option of retainingmember-
ship in the Teacher Retirement System of
Texas or becoming members of the hployees
RetirementSystem of Texas under the provi-
sions of Chapter 75, Acts of the 54th Legis-
lature, Regular Session, 1955, as amended.
Bnployees hired after the transfer shall be
members of the Employees Retirement System
of Texas."
The State Constitutionis not a grant of powers as is
the Federal Constitution,but la Instead a limitation of powers.
The Legislaturehas power to pass any legislationnot expressly
prohibited by the Constitution. Attorney Qeneral's Opinion
M-196 (1968). It Is necessary then to determine If the pro-
visions of~Secti.on14 of Senate Bill 110 contravene any limitation
contained in the Texas Constitution.
The Texas Constitution,Article III, Section 48a, as amended
November 5, lz68,authorizes the creation of the Teachers' Retire-
ment 'System, ...to provide retirement ...for persons employed
in the public schools...". The definition of "public schools"
and "persons employed in the public schools," is left to the
Legislature. The Legislature has defined "public schools."House
Bill 241, 61st Legislature, 1969, states in Section 1.02(2):
"'Public school' means any educational
Institutionor organizationin this state which
under the laws of Texas Is entitled to be
supported wholly or partly by state, county,
school district, or other municipal corporation
funds."
Article XVI, Section 62 of the Texas Constitution,as
amended November 5, 1968, authorizes the Legislature to provide
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. .
Honorable Frank M. Jackson, page 3 (~-421)
for a State Retirement,Dlsablllty and Death CompensationFund
for the officers tnd employees of the State, and provides that
the Legislature, ...may make such reasonable inclusions,ex-
clusions, or classificationsof officers and employees of this
State as it deems advisable.::Further, it creates the Employees
Retirement System of Texas, ...the rights of membership in
which,,,shall be governed by the provisions herein contained
and by present or hereafter enacted acts of the Legislaturenot
inconsistentherewith."
The employees of the Central Education Agency transferred
by the terms of S.B.l10 to the Commission for Rehabilitation,
are presently lawful members of the Teachers' Retirement System.
The newly formed Commission for Rehabilitationis supportedby
State funds, Is for educationalpurposes, and is, in our opinfon,
well within the definition establishedby H.B. 241, for a "public
school"; therefore, the transferredemployees are qualified to
remain members of the Teachers' Retirement System.
The provisions of Article XVI, Section 62, empower the
Legislature to "make such reasonable inclusions,exclusions,or
classificationsof ...employees...asit deems advisable,"and
to determine "the rights of membership" in the State Employees'
Retirement System. The provisions of Section 14 of S.B. 110
providing that new employees of the newly formed Commission for
Rehabilitationwill becane members of the Employees' Retirement
System Is an exercise of this power.
The Legislature has deemed it advisable to classify per-
sonnel being transferred frcm the Central Education Agency, to
the Commission of Rehabilitation,as one group of state employees.
The Legislature has deemed it advisable to classify employees
hired after the transfer, a second group of state employees. The
Legislaturehas delegated to each state employee in the first
group, the power to Include himself in, or exclude himself from,
participationin the state employees' retirementplan. The choice
to exclude himself is, in effect, a choice to remain in the
Teachers' Retirement System.
The Legislature has not delegated a power of choice to those
employed after the transfer,but has included this second group
of employees In the State mployeesl Retirement plan. This Legis-
lative Inclusion automaticallybars the second group from partici-
pation in the Teachers' Retirement System.
The employees of the new Commission for Rehabilitationare
employed in the "public schools" and are state employees. The
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. .
Honorable Frank M. Jackson, page 4 (M-421)
Legislature could have placed these employees In either of the
two retirement systems: furthermore,no problem of prior service
credit would have existed.
Article XVI, Section 63, of the Texas Constitutionprovides
for reciprocationof service credits for employees transferring
from either of the above retirementssystems to the other.
The only restriction imposed by the Constitution is that
no employee may be a member of both systems at the same time.
There Is no constitutionalprovision which prevents the Legls-
lature from allowing employees to exercise their own choice con-
cerning which system they desire, provided they are qualified
for both systems.
We find nothing to Indicate that the classificationsmade
by Section 14, of S.B. 110, are unreasonable,and therefore we
snswer your first inquiry in the negative and your second in-
quiry in the affirmative. In view of our answers to the first
two questions, it is unnecessary to answer your third and fourth
questions.
SUMMARY
Section 14 of 'SenateBill 110, Acts of
the 61st Legislature, 1969,Is not in conflict
with the Constitutionof the State of Texas.
Personnel of the Texas Education Agency, trans-
ferred to the Commission for Rehabilitation,
on September 1, 1969,have the option to remain
a member of the Teachers' Retirement System or
to become members of the State Employees' Retire-
ment System.
ney Qeneral of Texas
Prepared by Samuel D. McDaniel
and Tom Neely, Assistants
Attorney Qeneral
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Honorable Frank M. Jackson, page 5 (~-421)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Robert C. Crouch
Ray McGregor
Bill Corbusier
Ralph Rash
HAWTHORNE PHILLIPS
Executive Assistant
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