Untitled Texas Attorney General Opinion ( 1969 )

. .
GENERAL.
EXAS
October 14, 1969
Honorable Cus Mutscher ~Opinion No.&490
Speaker
House of Representatives Re: Whether State Employees
State Capitol who are former Leglsla-
Austin, Texas 78711 tors can retire as elec-
ted officials under Art.
Dear Sir: 6228a, V.C.S.
You have requested our opinion as to the construction
of Paragraphs 3E and J+F of Article 6228a, Vernon's Civil
Statutes, which read in part as follows:
"Subsection E.
"Any person who was an Elective State Offlclal
and who has served not-less than eight-(81
years in the Legislature of,Texas (as such
creditable service is defined in Chapter 524
Acts of the Regular Session, 58th Legislature
as amended) may become a member of the Employees
Retirement System by paying into such system
Two Hundred Eighty-Eight Dollars ($288) for
each year of service in the Leglsiature of Texas,
Provided further, any such person must make
application to become a member and pay In such
sums prior to January 1, 1970. Such application
shall be made on forms provided by the Board,
and, thereupon, such person shall be entitled
to all t;the privileges and benefits of such
system. Acts of the 61st Le ., Chap. 114,
p. 287, 289. (Emphasis added.
"F . Each appointed officer or employee, as de-
fined in this Act, who has heretofore withdrawn
his contributions and cancelled hfsaccurmzlated
creditable service for retirement purposes, x,
if he returns to State employment and continues
as such for a period of five (5 consecutive
years, or If an elective State,officlal, upon
taking the oath of office, be entitled to
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.
Hon. Qus Mutacher, page 2 (M-490)
deposit in the Retirement System In a lump
sum payment the amount withdrawn with a pen-
alty interest of two and one half per cent
(2J$) Per annum from the date of withdrawal
to the date of redeposit, plus any membership
fees due, and have his creditable service re-
instated for retirement purooses.... The
amounts to be deposited shall be determined
in each case by the Employees Retirement System
and In no event shall any such person be
granted retirement upon such former service
credits until the amount so determined shall
have been paid in full.” Acts of the 58th
Leg., Chap. 524, p. 1372, 1376. (Emphasis
added. )
Section 4F is a part of Chapter 524, Acts of _the _
58th Leg., 1963, page 1372. As this section existed prior
to 1969, it had already made a distinctionbetween the two
classes of persons composing the membership of the Employees
Retirement System. The first class Is composed of “apvolnt-
ive officers or employees”, and the second class is corn;
priaed of “elected officials”. The substance of this sec-
tion, ae enacted in Its present form in 1963, required a
five-year period of work on return to the system for those
In the first class who returned to the system as an ap-
pointlve officer or employee, but waived this period a~8
to the elected officials comprising the second class of
members. Section 4F is neither applicable nor relevant
to the question asked, for the reason that it speaks solely
to a former employee or official “who has heretofore with-
drawn his contributions and cancelled his accumulated credit-
able service.. . .‘I
J3y the 1969 amendment of Section 3E, the Leglsla-
ture provided that any former legislator with eight years
past legislative service may become a member of the Rm-
ployees Retirement System as a part of the elected class by
paying certain moneys into the fund. This inclusion Is
reasonable so long as the former Legislator seeking to be-
come a part of the elected class Is employed by the State
of Texas at the time he elects to pay his money and to join
the class of “elected officials” under the hnployees Re-
tirement System. Attorney General Opinion M-413 (1969)
concluded that it would violate the Constitution to allow
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Hon. Gus Mutscher, page 3 (M-490)
this membership or to credit prior service to leglsla-
tors, except when the person is employed by the State
at the time he seeks to invoke the benefits of the Rm-
ployees Retirement System.
Another limitation on the 3E elective membership
is that application to the Employees Retirement System
must be made "prior to January 1, 1970"; consequently
December 31, 1969, is the laet day for these applications
to be made under the new law,
This inclusion by the Legislature of former mem-
bers thereof who are now in State employment when they
apply to be a part of the elective class is a reasonable
classification under Article XVI, Sec. 62, Constitution
of Texas.
We must presume that the Legislature's classlfica-
tion is valid and reasonable. 12 Tex. Jur.2d, 460, Con-
stitutional Iaw, Sec. 112. We cannot say that It Is dis-
criminatory as between other classes of membership, since
there are material differences In the nature of duties,
responslbllitles, and service which distinguish elected
officials, including former members of the Legislature,
from employees and appointed officials. The test of rea-
sonableness as prescribed by the courts has been stated
as follows:
. . ..the test for determining its
reasonableness Is whether there is
any basis for the classification
which could have seemed reasonable
to the legislature.
"In order to be valid, a statutory
classification must reasonably pro-
mote some proper object of public
welfare or interest, must rest on
real and substantial relation to the
subject of the legislation, and must
affect all persons or things within
a particular class, or similarly
situated." 12 Tex. Jur.2d 459, Con-
stitutional Law, Sec. 111, and cases
there cited."
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.
Hon. Gus Mutscher, page 4(M-490)
In view of the foregoing, it Is our opinion that the
statutory provisions and requirements are non-discriminatory,
reasonable, valid, and constitutional, and former members
of the Legislature with the requisite eight years leglsla-
tive service are not required to comply with a five-year
employment requirement upon returning to the Employees Re-
tirement System (as do appointlve officials and employees)
in order to obtain membership qualification as elected of-
ficials.
SUMMARY'
Section 3E of Article 6228a, Vernon's Civil
Statutes, allows one who qualifies by reason
of at least eight years past legislative
service and who is now in State employment,
to become a member in the "elective class”
of the Employees Retirement Syetem without
working five consecutive years. Section 4F
of Article 6228a, supra, the five-year pro-
vision, is not applicable to such members.
The provision In Section 3E allowing member-
ship In the "elected class" to those employees
with prior legislative service and present
state employment is reasonable under Article
XVI, Sec. 62, Constitution of Texas.
eneral of Texas
Prepared by Roger Tyler
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Co-Chairman
John Hanks
Sarah E. Phillips
Houghton Hrownlee
Bob Flowers
Louis G. Neumann
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Hon. Gus Mutscher, page 5(M-490)
MHADEF. GRIFFIN
Staff Legal Advisor
HAWTHORNE PHILLIPS
Executive Assistant
NOLA WHITE
First Assistant
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