Untitled Texas Attorney General Opinion

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