concurring.
I concur in the judgment reached by the majority but I cannot agree with all of the reasoning by which it is reached.
Initially, one should note that appellant has not brought to this Court a point of error by which he contends that his contingent right to an annuity on retirement was not, at the time of his divorce, an article of “property” under the judicial decisions controlling at the time of the divorce, and therefore not divisible by the divorce court under Tex.Fam.Code Ann. § 8.63 (Supp.1982). See Heisterberg v. Standridge, No. 13,388, 656 S.W.2d 138 (Tex.App.—Austin 1983). Moreover, the Bonifaces had in my view “acquired” a “property” interest in the annuity before their divorce, even under the judicial decisions which bound the divorce court. At the time of their divorce in 1972, appellant was fifty years of age and had performed something over twenty-seven years of creditable federal service. Accordingly, at the time of his divorce appellant had not yet served the minimum number of years necessary to receive annuity payments immediately upon his retirement under 5 U.S.C.A. § 8336(a) (1980), and would not do so until he reached age fifty-five in 1977, assuming that he continued in the federal service. He had served, nevertheless, the minimum number of years required to receive a “deferred annuity” under the provisions of § 8338(a), consisting of annuity payments beginning at age 62, irrespective of when he retired.
At this point one observes that the majority opinion speaks of the retirement benefits in this cause as having “accrued” and “vested.” I believe it is necessary to explain that an interest in contingent future annuity payments of the kind in issue here is now considered a property interest, subject to division on divorce to the extent it is community property, irrespective of whether the interest is “accrued” or “matured” at the time of the divorce. Cearley v. Cearley, 544 S.W.2d 661, 664 & n. 4 (Tex.1976).
Next, we should not omit to mention, it seems to me, the rather clear error in the trial court judgment wherein appellant is required to pay to appellee “40.05% of each monthly amount ... without reduction of said benefits for any amounts paid for any survivor’s benefits or any other deductions, ...” This is inconsistent with Berry v. Berry, 647 S.W.2d 945 (Tex.1983) because it awards to appellee more out of each payment than the amount she would have received if appellant had retired on the date of the divorce, as we have discussed in Heisterberg, supra. Appellant has, however, failed to raise a point of error which may fairly be viewed as attacking this aspect of the trial court judgment.
Finally, I cannot concur with the majority’s reasoning in their disposition of appellant’s claim that federal law preempted the division of his retirement annuity in appel-lee’s partition suit. Appellant argues that prior to the 1978 enactment of 5 U.S.C.A. § 8345(j), the provisions of § 8346 precluded a divorce court’s division of his retirement annuity and that his divorce proceeding was governed by these provisions, which are similar to those relied upon in part to effect preemption in Hisquierdo v. His*137quierdo, 99 U.S. 572, 439 U.S. 572, 59 L.Ed.2d 1 (1979) and McCarty v. McCarty, 453 U.S. 210,101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). As in Heisterberg, supra, appellant contends that § 8346 precludes a division of his retirement annuity in a partition suit because the enactment of the exception provided by § 8345(j) did not become effective until after his divorce; and, moreover, the trial court’s partition order is not within the exception contained in § 8345(j) because it is not an order incident to a divorce.
The majority disposes of appellant’s first contention by holding that the federal statutes applicable to his annuity right never pre-empted the division of annuity rights thereunder, for it was permissible under those statutes for a State divorce court to order the annuitant to remit a portion of the annuities to his former spouse after he received them from the Office of Personnel Management; and that the 1978 enactment of § 8345(j) did not operate to confer this authority for the first time upon State courts, but merely authorized the Office to make payments directly to the annuitant’s former spouse. In order to assign this meaning to the pertinent pre-1978 federal statutes, the majority relies solely upon and quotes extensively from the Senate committee report which recommended passage of the 1978 enactment of the amendment codified as § 8345(j), and subsequent regulations which implement that enactment. While these materials do indeed reflect the congressional understanding of the effect of the pre-1978 statutes, they do not constitute “legislative history” with respect to the pre-1978 statutes. The legislative history which is most pertinent to those earlier statutes is that which preceded their enactment.
[A] subsequent legislative construction of a statute is not conclusive of the meaning of the former statute. “While a legislative construction of an act is entitled to due consideration from the courts, it is by no means binding; .... ” Although comments about an earlier act in a legislative committee report on a subsequent bill are not part of the legislative history of the earlier act and therefore have less probative force than legislative history, they are entitled to consideration as an expert opinion concerning its proper interpretation.
2A Sutherland, Statutory Construction § 49.11 at 265-66 (1973). Moreover, legislative history is not the sole resource for interpreting the previous statutes and the majority does not demonstrate how and why the legislative history of the 1978 enactment should prevail over the express language in § 8346, which was startlingly similar to that relied upon in part in Hisquierdo and McCarty for the conclusions that the federal statutes in those cases did result in preemption. It is therefore distinctly possible that the Supreme Court of the United States would have applied § 8346, together with the reasoning employed in those cases as to other factors, to reach a similar result with respect to civil service retirement annuities, irrespective of what Congress may have thought in 1978 with respect to its interpretation of the relevant statutes as they existed before that year.
I point out my differences with the majority opinion because I do not wish to be bound by the statements and reasoning by which their conclusion is reached. Moreover, I believe it unnecessary to decide whether federal law, previous to 1978, preempted a State divorce court’s division of civil service retirement annuities. Even if the doctrine of federal preemption did apply to appellant’s divorce judgment, it does not apply to appellee’s partition suit for the reasons stated in Heisterberg — the preemption doctrine cannot be held to have given to appellant’s annuity the legal status of separate property, at the time of the divorce, and when the partition action was adjudicated, the exception of § 8345(j) was applicable, permitting division of the annuity under State property law.
With these reservations and clarifications, I concur in the judgment.