AUSTIN. TEXAS
December 13, 1949
Hon. B. B. Sapp 0plnlon NO. v-963.
Rxeautive Director
Teacher Retirement Be: Authority of Board of
System of Texas Trustees of Teacher Re-
Austin, Texas tirement System to pro-
mulgate submitted rules
and regulations for ad-
ministration of S.B.
Dear Mrs. Sapp: 438, slat Leg.
We refer to your letter requesting this office
to consider rules and regulat+oF devised for the admin-
istration of Senate Bill Ho. 436, Acts 51st Legislature,
1949, and to determine their validity in the light of
that law, the Teacher Retirement System Act, and the Em-
ployees Retirement Act.
Sections 1 and 2 of Senate Bill 438, provide:
"Section 1. Effective September 1, 1949,
any person who is a member of either the Teaoh-
er Retirement System of Texas under the provi-
sions of Chapter 4 0, Acts, Regular Session,
45th Legislature, I 1937), as amended, or the
Fkuplogees Retirement System of Texas under the
provisions of Chapter 352, Acts, Regular Ses-
sfon, 50th Legislature, (1947), as amended,
and if such person had also been a member of
said System for a rtod of two (2) years prior
to September 1, 19r 9, and/or If any Person be-
came a member of either .Sgstem after September
1, 1947, but before September 1, 1949, and oon-
tinued in such employment for a period of five
(5) consecutive years, then such member shall
be entitled to reoeive credlk and resulting
benefits for any and all prior service credit-
able as prior service for emplovment under the
provisions of either of said Acts and the re-
spective Boards of Trustees are hereby instruct-
ed 'to review the prior service of the employees
who were members on September 1, 1949, under
either Act to permit said members to claim such
additional prior service as provided herein and
Hon. B. B. Sapp, page 2 (v-963)
to include same in the prior service certifl-
cates to be issued; OP if a prior service oer-
tlflcate has been issued, to adjust and effect
an amended PPiOr SePvice certificate after such
additional prior service claimed has been pro-
peerly verified as provided In the provisions
of the two Retirement Acts.
“Sec. 2. In the event a member of one
of said Retirement Systems shall terminate
his employment and within five (5) years re-
tarn to employment in a position requiring his.
membership in the other Retirement System,
such member shall be entitled to retain his
priory service and accumulated membership ser-
vice credited to him under the first System
and th t 1 accumulated creditable service
ible for joint retirement under
%&~$ as provided herein. Provided
is shall not apply to any teach&
or Stat: employee who has withdrawn his accu-
mulated contributions in either system.” (Em-
phasis added)
Article III, Section 48a, Constitution of Tex-
as, provides in part:
“In addition to the powers given the
~gislature, under Section 48 of Article 3,
it shall have the right to levy taxes to
provide a Retirement Fund for persons employ-
ed in publio schools, colleges and universi-
ties, supported wholly or partly by the State:
0 . . provided no person shall be eligible for
a pension under this Amendmentwho has not
taught twenty years in the State of Texasbut
shall be entitled to a refund of the moneys
paid into the fund.
It. . . and provided that the reel ients
of such retirement fund shall not &e
for any other pensions retirement .funds or dl-
Feat aid from the State, unless suah retlre-
ment fund, contributed by the State, is re-
leased to the State of Texas as a condition
to receiving suoh other pension aid .” (Rm-
phasis added)
Article XVI, Section 62a, Constitution of
Eon. B. B. Saps, Page 3 (V-963)
Texas, provides in part:
“The Legislature shall have the right to
levy taxes to provide a Retirement Disability
and Death Compensation Fund for the appolntive
officers and employees of the State; . . .
” . . . and provided that the reclnients
of benefits from said Fund shall not be eligi-
ble for any other oenslon retirement funds or
direct aid from the State of Texas, unless the
Fund, the creation of which is provided for
herein, contributed by the State, is releas-
ed to the State of Texas as a condition to re-
ceiving such other pension aid.” (Rmphasls
added )
The Constitution provides that the recipients
of Teacher Retirement Funds shall not be eligible for
any other pension retirement funds from the State of
Texas. It provides llkewiae with respect to recipients
of Rmployees Retirement Funds. Both the Teacher Retire-
ment and the Employees Retirement Funds are pension re-
tirement funds of the State of Texas. These oonstltu-
tlonal provisiona preclude, In our opinion, the use of
both funds In the payment of a “joint” retirement pen-
slon as proposed in Senate Bill Ho. 438.
The purpose of Senate Bill 438, as reflected
in these quoted provlslons, la to allow persons eligible
for retirement under its provisions, the Teacher Retire-
ment Act (Art.2922~1, V.C 23. as amended) and the E!m-
ployees Retirement Act (Art.&228a, as amended) to become
recipients of retirement funds from both the Teacher Re-
tirement System and the Employees Retirement System. The
other provisions of Senate Bill 438 are designed for the
accomplishment of the same purpose. Under the proposed
rules submitted by you "each beneficiary under joint re-
tirement vi11 receive monthly annuity payments from each
System. "
The whole spirit and purpose of Senate Bill Ro.
43% being in direct conflict with the quoted Constitution-
al Amendments, the Bill is unconstitutional and for that
reason unenforceable.
In one other respect Senate Bill 438 is uncon-
stltutlonal. Section 4 of the Bill would allow accumula-
tion of creditable service of both Systems (the Teacher
Hon. B. B. Sapp, page 4 (v-963)
S~ystem and the Rmployees System) for the purpose of~ar-
riving at twenty years of joint creditable service,
thereby entitling one to retire under the reciprocal re-
tirement provisions of Senate Bill 438. This section
violates that part of the Constitution concerning the
Teacher Retirement System which states that "no person
shall be eligible for a pension under this Amendmentwho'
has not taught twenty years in the State of Texas." De- +3d
spite the severability clause in Senate Bill si; we think
the Legislature would not have passed the Bill if its
full reciprocity benefits could not be realized by both
those persons covered by the Teacher Retirement law and
those covered by the Rmployees Retirement law.
It is pertinent 'also to note that the Teacher
Retirement Amendment and the Teacher Retirement Act, Art.
2922-1, V.C.S., has been before the courts of this State
on one occasion. In Woods v. Reilly, ,147 Tex. 586, 218
S.H.2d 437 (1949), the court stated:
"At the outset it should be stated that
the plain intent of the ConstItutional Amend-
ment; and the Act giving it life, was to pro-
vide security for teachers and create an in-
centive to encourage qualified persons to be-
come and remain teachers in the public schools
of Texas . . .I'
It is obvious that the quoted language would
apply as well to the Employees, Retirement Act, Art.
6228a; v.c.9.; that the plainintent ~of the Employees
Retirement Constitutional 'Amendment, and the Act giv-
ing it life, was to provide security for State employees
covered thereby and oreate an incentive to encourage
qualified persons to become and remain State ernployees.~~~-+.'G
To construe Senate Bill Z!SFas constltue J
to defeat such plain intents and purposes of both the
Teacher and Employees Amendments and the Acts giving
them life.
In view of our above holding, we pretermit dis-
aussion concerning the rules and regulations subml.tted
for our approval.
Senate BillHo.438, Aots 51st Legisla-
ture, 1949, providing a joint retirement
,
.
Hon. B. B. Sapp, Page 5 (v-963)
_-
program financed by funds from both the
Teacher Retirement and Employees Retire-
ment Funds is unconstitutional in that it
violates the Teacher Retirement and Employees
Retirement Fund provisions and purposes of
Article III, Section 48a, and Article XVI,
Section 62a, Constitution of Texas.
Yours very truly,
ATTORNEY
GENERALOF'TEXAS
CEO:mw
Chester E. Ollison
Assistant
APPROVRD
iciLJLd
ATTORERYGERRRAL