Untitled Texas Attorney General Opinion

45 OFFICE OF THEATTORNEYGENERAL Avsrm, TEXAS pRICE DANIEL *moRNEYGENERAL January 22, 1948 Mr. Gordon Ii.Lloyd, opinion No. v-480 Executive Secretary, Employees Retirement System, Re: Eligibility of employ- Aus tin, Texes ees of the State Bar of Texas to be mem- bers of the Rmplogees Retirement System. Dear Mr. Lloyd: Your recent request for an opinion of this de- partment Is as follows: "Please advise if, in your opinion, the employees of the State Bar of Texas are eli- gible for membership with the Rmployees Re- tirement System." Section 62(a) of Article 16 of the State Con- stitution provides, In part, that: "The Legislature shall have the right to levy taxes to provide a Retirement, Dis- ebilltr and Death Comoensatlon Fund for the appoinkve officers and employees of the State: . . ,.."(Emphasis added throughout) The Act passed by the 50th Leglsleture to car- ry Section 62(a) of Article 16 of the Constitution into effect is Article 62288~of Vernon's Civil Statutes. Per- tinent provisions of the Act are as follows:' "Section 1 . . . "B. 'Department' shall mean any department, commission, institution, or - a- gency of the State Government. "C. 'Rmployee' shall mean any regularly appointed officer or employee in a department of the State who is em- ployed on a basis or in a position normal- 'Ig requiring not less than nine hundred 46 Mr. Gordon H. Lloyd,,page 2 (8-480) (900) hours per year, but shall'xiotin- clude members of the State Leglsxature or any.ticumbent of an office normally filled by vote of the people; nor persons on piece- work basis; nor operators of equipment or drivers of teams whose wages are included in rental value paid the owners of said equipment or team; nor any person who is covered by the Teacher Retirement System of the State of Texas or any retirement system supported with State funds other than the Texas Employees Retirement Sys- tem. "D. 'Employer' shall mean the State of Texas. "Sec. 3. The membership of said Re- tirement System shall be composed as fol- lows: "A. All persons who are employ- ees on the date as of which the Retirement System is established shall become members as of that date as a condition of their em- nt unless within a period of ninety pi:Eays after September 1, 1947, any such employee shall file with the State Board of. Trustees on a form prescrlbed$y such Board, a notice of his election not to be covered in the membership of the System and a duly executed waiver of all present and pros- pective,beneflts~whi.chwould otherwise inure to him on account of his participation in the Retirement System. The following per- sons shall, however, not be eligible for participation in the Retirement System: “1. Members of the State Legislature or any incumbent of an office normally fill- ed by-a vote of the people, nor any person who is covered by the Teachers Retirement System or any retirement system supported with Stat&funds othe5 than the Texas Rm- ployees Retirement System. '2. Persons employed'on a piecework basis or operators of equipment or drivers of teams whose wages are included in the Mr. Cordon R. Lloyd, page 3 .(V-480) rental rate paid the owners of said equip- ~:,: ment,or team. 1 "3 . Duployees who'are employed less than nine hundred (900) hour8 per year. "B. Any person who beoone.8an employee on or after the date of establish- ment oftthe System she.11,upon the comple- tion of nine (9) months of,continuous ser- vice uninterrupted by a break of more than one month, becomesa member of the System as a condition of employment, provided said person 18 less than Sixty (60) years of a e at the time of completion of said nine (9'f months of service. . . .' _ We quote the.followlng from the State Bar Act, .Article ;320a-1,Vernon'8 Civil Statutes: 'Sec. 2. There is hereby created the StatesBpr, which isherebg~ Constituted an .~ administrative agency of.the Judicial De- rtment of.the State, with power to con- its own affairs and which may sue a~ndbe sued and have such other powers as are reasonebly necessary to carry out the purposes of.this Act. :"Se&. 4;, Within six (6) months from. the,effectlve date of.thls Act, and from time to timesthereafter, as to the Courts may,seem proper, the Supreme Court of Texes shall prepare and.propose rules and regula- ' tions v . .,for the conduct of the State Bar .~. . . "The-Supreme ~Court is further empow- ered.and.it shall be its ,duty to rescribe fees not exceeding Four Dollars ($ 4) per annum per.per8on't.obe paid to the Clerk of the Supreme Court to.be held by him and expended by the Courtor under its dlrec- tion for the purpose of the administration of this Act . . .' The State Bar is'an agency of the Judicial De- eartment of the State Government. It is, therefore, a department.!within the terms of the Act creating the 48 Mr. Cordon II.Lloyd, page 4 (v-480) Employment Retirement.System of Texas. The employees of the State Bar, then, are "employees" of the State under the Act unless specifically excluded Under the deflni- tion of "employee". We find nothing in that definition keeping them, as a class, from being "employees". We are of the opinion that employees of the State Bar are eligible for membership with the Bnployees Retirement System if they come withln the provision8 of~Section 3, Subsection A of the Act, supra, and are not specifical- ly excluded thereby. They are not specifIcalLy exclud- ed. Further, we are of the opinion that all employees of'~theState before the date of the establishment of the System (September-l, 1947), unless excluded from member- sh$p by Seation 3, Subseotion A, were not only eligible for membership but were automaticelly taken into the membership of the System UnleSS~Within'a'period of nine- ty (90) days 8fter September 1; 194.7,such employees fil- ed with the State Board of Trustees notices of their election not to be covered in the membership and waivers of all benefits which would otherwise inure to them by participation in the Retirement System. With reference to persons becoming State Employees on or after the date of the establishment of'the System, see Section 3, Sub- seotion B, Article 6228a,,Vernon's Civil Statutes, su- pra. Although the funds from which employees of the State Bar are paid are State funds, they are not adminis- tered through the State Treasury and the State Comptrol- ler's office. In 8UCh an instance, the k@SlatuFe ha8 made no provision, within the teems of the Retirement Act, for contributions of the State in order to mstch contributions of such employees. It i8 OUP OpiIIiOnthat the lack of such a provision at the present time does not exclude an otherwise qualified employee from member- ship in the System. Ro person who has met the qualifi- cations of an "employee" under the terms of the Retire- ment Act is precluded from memberstip in the Retirement System because the Legislature ha8 not yet specified the mechanics to be used In making all of the contributions of the State in matching the coxlbutions of employees. In reaching this conclusion we reaffirm the conclusion reached in Opinion V-336, but modify the language used therein so as to conform to the view expressed jn this paragraph. SliMMARY The State Bar of Texas, by the terms 49 Mr. Gordon H. Lloyd, page 5 (v-480) of Section 2, Article 3208-l,,Vernon's Civil Statutes, is sn "agency of the'Judi- cial Department of the State:, and is, therefore, an "agency of the Sta.teGovern- ment" within the provisions of Article 6228a, Vernon's Civil Statutes. Its ,em- ployees, if otherwise qualified, are eli- gible for membership in the Employees Re- tirement System. Yours very truly ATTORNEY GERERAL OF TEXAS CDK:jrb:mw ASiiStEdlt - u : ATTORNRYGERRRAL