. ^
January 29, 1955
Hon. John H. Winters
Executive Director
Department of Public Welfare
Austin, Texas
Opinion No. S-151
Re: Legality of obtaining Federal
Old Age and Survivors Insur-
'ante coverage for county appoint-
ive officers and employees
presently covered by a county
retirement fund established pur-
suant to Article XVI, Section
62(b), Tex.,Const.
Dear Mr. Winters:
You have requested the opinion of this office on
the above captioned subject.
Under Section 4 of Article 695g, Vernon's Civil
Statutes, the Department of Public Welfare is authorized
to enter into agreements with the governing bodies of eli-
gible counties for the purpose'of obtaining Federal Old
Age and Survivors Insurance coverage for county employees.
Under Section 8 of Article 6959, counties which have ob-
tained such coverage for their employees make the required
matching contributions from the respective sources of funds
from which the covered employees receive their compensa-
tion.
Prior to the amendment of Section 218(d) of the
Social Security Act by the 83rd Congress, Second Session,
employees of counties which had a retirement system for
said employees were not eligible to obtain coverage under
the Federal Old Age and Survivors Insurance system. Since
the amendment of the Federal Act such employees may now
obtain coverage unless Article XbI, Section62(b) of the
Texas Constitution prohibits their obtaining coverage.
The pertinent provisions of that section are the following:
Hon. John H. Winters, page 2 (s-151)
“(b) Each county shall have the right to
provide for and administer a Retirement Disa-
bility and Death Compensation Fund for $he
appointive officers and employees of the county;
provided same is authorized by a majority vote
of the qualified voters of such county and af-
ter such election has been advertised by being
published, in at least one newspaper of general
circulation in said county once each week for
four ccbnsecu;ive weeks; provided that t;;a;yunt
contri uted v the countv to such m
equal the amount paid for the same purpose from
the income of each such person, and shall not
-exceed at anv time five aer centum (5%) of&
compensation oaid to each such uerson bv the
such oerson.
I,
and provided that the recioients of
benefiis’f;om said Fund shall not be eligible
for anv other oensi n retirement funds or direct
aid from th.e State tf Texas. unless the Fund,
the creation of which is orovided for he &
contributedqv the countv. is released tz’thi
State of Texas as a conditi n to eceivins suc4
other nension aid. (Emphazis adied)
We will first consider the effect of the prohibition
underscored in the first paragraph. This provision specif i-
tally states that the county is limited as to the amount that
may be contributed Yzo such m ‘I i.e., a County Retirement,
Disability and Death Compensatioi Fund. Matching contribu-
tions made by a county under the Federal Old Age and Survivors
Insurance system would not be made to a County Retirement,
Disability and Death Compensation Fund. Therefore, the limita-
tion contained in this provision is not applicable here.
The provision underscored in the second paragraph
above quoted likewise presents no obstacle. This is so for the
reason that the recipient of benefits under Federal Old Age
and Survivors Insurance system and under a County Retirement,
Disability and Death Compensation system will not be receiving
aid from a pension retirement fund of the State of Texas; nor
will he be receiving any kind of direct aid from the State of
Texas.
In your letter requesting our opinion, you state
that the Department of Public Welfare has heretofore entered
.
Hon. John H. Winters, page 3,, (S-151)
into agreements with approximately one~‘hundred ninety counties
for the purpose of obtaining Federal Old Age and Survivors In-
surance coverage for theirs employee,s. You, point out that Ar-
ticle 695g containsno requirement for any kind of an election
and that you have interpreted the “authority of the, State
Agency to enter into agreement with . . . co’unties . . . for
oarticipation of their employees in the Federal Insurance,.Sys-
tern as being wholly separate ,and distinct fro& a County Retire-
ment astern as provided for in this Section LArt. XVI, Sec.
62(bl/ of the Constitution.” We agree.
In _Parrar v. Board of Trustees etc 243 S.W.2d
688, 150 Tex. 581 (1951) the Supreme Co&t hlid unconstitu-
tional Article 6288~. Tiis Article provided that any person
who is a member of either the Teacher Retirement System or the
Employees Retirement System could, under stated conditions, re-
ceive credit and resulting benefits for any and all prior serv-
ice creditable as prior service for employment under the provi-
sions of either System. Article 6228~ also provided that any
person who accumulated creditable service, b.etween both systems
could retire with joint creditabl,e service between the two sys-
tems.
J,
Section 48a of Article III of the Texas Constitution
authorized the Legislature to levy taxes and provide a retire-
ment fund for persons employed in public schools, colleges and
universities supported in whole or in part by the State. The
plain intent of this section said the Court, was to keep edu-
cational workers in that field. It did not extend its bene-
fits to any other persons.
Ten years later the Em loyees Retirement amendment
was adopted. Article XVI, Sec. i!2, Tex. Const. This prov i-
sion, said the Court, conferred benefits only on appointed of-
ficers and employees of the State and was designed to encourage
experienced officers and employees to remain at their posts.
Both sections provide that no recipient of its bene-
fits can ever be eligible for benefits from any other retire-
ment fund unless and until he releases to the State such part
of the fund from which he is already receiving benefits as
may have been provided by the State. The Court pointed out
that if persons could transfer from teacher to employee or
from employee to teacher carrying with them at each transfer
their accumulated benefits under both systems up to the time
of their retirement, the dominant purpose of both sections
would be defeated.
-. r
Hon. John H, Winters, page 4 (S-151)
Thus this case is distinguishable from the one pre-
sented by your request. As we have previously pointed out,
the receipt of benefits sunder the Federal Old Age and Survi-
vors Insurance system will snot be the receipt of a benefit
provided by the State. Also in this case, the dominant pur-
pose of Section 62(b) of Article XVI will be effectuated
rather than destroyed. County appointive officers and employ-
ees will have an additional incentive for remaining at their
posts,
You are therefore advised that Article XVI of Sec-
tion 62(b) does not prevent county appointive officers and
employees from obtaining Federal Old Age and Survivors Insur-
ance coverage.
Section 62(b) of Artiale XVI of the Consti-
tution of Texas does not prevent county appoint-
ive officers, and employees from obtaining Federal
Old Age and Survivors Insurance coverage, even
though presently covered by a County Retirement
Fund.
APPROVED: Yours very truly,
W. V. Geppert JOHNBEN SHEPPERD
Taxation Division Attorney General
Phillip Robinson
Reviewer
Robert S. Trotti
First Assistant Assistant