Untitled Texas Attorney General Opinion ( 1987 )

February 26, 1987
Mr. Marvin J. Titsman Opinion No. m-639
Executive Director
Texas Surplus Property Agency Re: Whether members of the Texas
P. 0. Box 8120 Surplus Property Agency Board are
San Antonio, Texas 78208 eligible to participate in the
Employees Retirement System
Dear Mr. Titzman:
You ask whether a member of the Texas Surplus Property Agency
Board is eligible to earn retirement service credit with the Employees
Retirement System under the provisions of section 23.502, Title llOB,
V.T.C.S. Before we cau address your question, we must set out
background Information about the Teachers Retirement System. the
Employees Retirement System. and the Texas Surplus Property Agency.
The Teachers Retirement System [TRS] was established in 1937.
Acts 1937, ‘45th Leg., ch. 470, at 1178. At that time the membership
of the TRS consisted of all salaried’ teachers employed by a board or
agency of au educational institution or organization supported by the
state. Id. at 1178-81. In 1949 the membership of the TRS was expanded
to inclurall salaried employees of educational organizations. Acts
1949, 51st Leg., ch. 139, at 244, 247-40. The statutes governing the
TRS are uow codified In Title 1lOB. sections 31.001 through 36.204,
V.T.C.S. Unpaid members of administrative boards have never been
included in the membership of the TRS.
The Employees Retirement System [ERS] was established in 1947.
Acts 1947, 50th Leg., ch. 352, at 697. Its membership consisted of
any “regularly appointed officer or employee in a department of the
State” who was employed on a basis or in a position normally requiring
not less than 900 hours a year. Id. Members of other public retire-
ment systems. including the TRS, ze expressly excluded from member-
ship in the ERS. -Id. at 697, 699.
In 1971 the ERS statute was amended to include a provision that
allowed unpaid administrative board members to claim service credit
vith the ERS for
[slervice as a Board Member of a statutory Texas
State department, agency. or commission having
statewide jurisdiction, the employees of which,
under requirements of lav, are members of the
Employees Retirement System; provided that such
service was not in a full time salaried position
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Mr. Marvin J. Titsmsn - Page 2 UM-639)
but was subject to confirmation by the Senate of
Texas.
Acts 1971. 62nd Leg., ch. 355, Il. at 1332. codified as art. 6228a,
64R.2. The amount of the contribution to be made by an eligible board
member was based ou the salary paid to the chief executive officer of
the relevant department during the time for which the board member
claimed credit. Id.
-
In 1977 the legislature amended the ERS statutes so that adminls-
trative board members were no longer permitted to establish service
credit with the RRS. Board members who were already contributing to
the ERS. however, were allowed to continue doing so. The 1977 legisla-
tion provided
that any member of au administrative board of a
statutory state department, agency. or commission
as defined in Section 48.2 [the 1971 legislation
set out above] of this Act may, on or before
December 31. 1977, become a contributing member of
the Emnlovees Retirement System of Texas and only
persona who establish retirement credit for board
service during December. 1977, may continue to
establish credit for subsequent, continuous board
service in the manner prescribed by that section
and ourchase his previous service in accordance
wlth’the terms of this Act. (Emphasis added).
Acts 1977, 65th Leg., ch. 279, at 746. When the ERS statutes were
recodified as part of Title 1lOB in 1981. the provision set out above,
was recodified in the following form:
(a) A member who established during December.
1977 t service credit for administrative board
service performed during that month, say:
(1) remain a contributing member of the
retirement system accruing service credit in
the employee class for continuous service on an
eligible board; and
(2) establish service credit for previous
service on an eligible board.
(b) Contributions for administrative board
service are computed on the basis of the highest
salary paid during the time for which credit is
sought to an officer or employee of the agency.
cosmission. or department on whose board the
member serves.
V.T.C.S. Title 1lOB. Public Retirement Systems, P23.502. Because your
question requires careful analysis of the 1977 amendment to the ERS
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Hr. Marvin J. Titman - Page 3 (JM-639)
statutes, we will refer to the original language of the 1977 amendment
rather than the language as recodified at Title 1lOB. section 23.502.
See Title 1lOB. §l.OOl(a) (recodification is not intended to make a
substantive change in the law).
Your question involves a person who established administrative
board service during December 1977 as a member of the Veterans Affairs
Conrmission and who in 1985, without a break in administrative board
serrrlce, became a board member of the Surplus Property Agency. You
ask whether this person is eligible to remain a contributing member of
the ERS under the 1977 amendment to the ERS statutes. Before we can
address that issue we must explain the unusual history of the Surplus
Property Agency.
The Surplus Property Agency was created in December 1945 by
Governor Coke Stevenson. Letter from Governor Coke Stevenson to Dr.
J.W. Studebaker of the Federal Security Agency (Dec. 18, 1945),
letters of Gov. Coke Stevenson, Texas State Archives. Governor
Stevenson created the agency in response to a request from the federal
government that Texas name a state agency to receive surplus war
property from the federal governxent. Id. Apparently the governor
relied on a 1943 statute that gave the Kernor war emergency powers
as his authority for creating such an agency. Acts 1943, 48th Leg.,
ch. 142, at 223 (an act for the organization and coordination of
defense activities in Texas); see also Tex. S. Con. Res. 33, Acts
1949. 51st Leg., Tex. S. Con. Res. 33. at 1392 (stating that the
governor set up the Surplus Property Agency under his war emergency
powers).
In 1949 the legislature passed a joint resolution requesting the
governor to continue the Surplus Property Agency for the benefit of
the state’s schools and institutions of higher education. Acts 1943,
48th Leg., ch. 142, at 223. The legislature adopted similar resolu-
tions at every subsequent regular session of the legislature through
1969. Acts 1951, 52nd Leg., H.R. Con. Res. 66, at 1579 (broadening
the beneficiaries of the donable property program to include public
health institutions); Acts 1953, 53rd Leg., E.R. Con. Res. 110, at
1151; Acts 1955, 54th Leg., H.R. Con. Res. 101, at 1781; Acts 1957,
55th Leg., H.R. Con. Res. 46. at 1587: Acts 1959, 56th Leg., H.R. Con.
Res. 81, at 1204; Acts 1961, 57th Leg., S.Con. Rer. 29, at 1202; Acts
1963. 58th Leg.. S. Con. Res. 12, at 1690; Acts 1965, 59th Leg., S.
Con. Res. 7. at 1969; Acts 1967, 60th Leg., B.R. Con. Res. 97, at
2914; Acts 1969. 61st Leg., H.R. Con. Res. 24. at 3115. See Terre11
Wells Swimming Pool v. Rodriguez, 182 S.W.2d 824, 826 (Texniv. App.
- San Antonio 1944. no writ) (a concurrent resolution does not have
the effect of a statute).
In 1971 the legislature enacted a statute “establishing” the
Surplus Property Agency. Acts 1971. 62nd Leg., ch. 32, at 59,
codified at art. 6252-6b, V.T.C.S. A letter from the TRS informs us
that before 1971 the Surplus Property Agency was treated as a part of
the Texas Education Agency and that employees of the Surplus Property
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Mr. Marvin J. Titman - Page 4 (34-639)
Agency were members of the TRSi When the Surplus Property Agency
became a statutory state agency in 1971, Its employees continued to be
covered by the TRS even though employees of the Surplus Property
Agency no longer met the statutory requirements for membership in the
TM. See
- V.T.C.S. Title 1lOB. $32.001 (membership of TRS).
We think that the legislature, by failing to act, has by now
acquiesced iu the treatmaut of Surplus Property Agency employees as
members of the TRS even though Surplus Property Agency employees do
not meet statutory requirements for membership in the TRS. See
Associated Indemnity Corp. v. Oil Well Drilling Co., 258 S.W.Zd 5%
529 (Tex. Civ. App. - Dallas 1953). aff’d, 264 S.W.2d 697 (Tex. 1954)
(courts inclined to accept administrz agency’s interpretation of
statute if accepted over long period of time wlthout challenge). Your
question. however, involves the status of a member of the Surplus
Property Agency Board rather than au employee of the Surplus Property
Agency. The TRS has properly told the board member in question that
it cannot accept a contribution from him because unpaid administrative
board mambers do not belong to the TRS. The ERS has refused to accept
a contribution from him and has stated that only members of adminis-
trative boards whose employees are members of the ERS are eligible to
contribute to the ERS under section 23.502 of Title 1lOB. To deter-
mine whether the ERS has properly refused to accept a contribution
from the board member in question we must carefully examine the 1971
and 1977 amendments to the ERS statutes.
After December 1977 an administrative board member could continue
to contribute to the ERS only if he was on the board of “a statutory
state department, agency, or commission” as defined in the 1971
amendment. To be a member of a board of a state agency as defined in
the 1971 amendment one ‘would have to (1) serve as a member of a
“statutory” state agency; (2) serve in a position that was not a
full-time salaried position; (3) serve in a position that required
confirmation by the senate; and (4) serve with a board “the employees
of which, under requirements of law, are members of the Employees
Retirement System.” See
- Acts 1971. 62nd Leg., ch. 355, at 1331.
A member of the Surplus Property Agency board meets the first
three of those four requirements. Two months before the effective
date of the 1971 amendment to the ERS statutes the Surplus Property
Agency became a “statutory State board.” See Acts 1971. 62nd Leg.,
ch. 32, at 59, eff. March 19, 1971 (establimng the Surplus Property
Agency) ; Acts 1971. 62nd Leg., ch. 355, at 1331. eff. May 25, 1971
(allowing ERS service credit for administrative board service). Also,
Surplus Property Agency Board members serve without pay and are
subject to confirmation by the Senate. V.T.C.S. art. 6252-6b, 51; see
also Attorney General Opinion H-1221 (1978) (construing article 6228a.
14a.2).
The fourth requirement poses a more difficult problem. To meet
that requirement a board member must serve with a board “the employees
of which, under requirements of law. are members of the Employees
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Mr. Mirzin J. Titsmau - Page 5 (JM-639)
Retirement System.” The employees of the Surplus Property Agency are
not and have never been members of the ERS. An examination of the
statutes and relevant legal authorities, however, would lead one to
the conclusion that Surplus Property Agency employees are members of
the ERS “under requirements of law.”
The law provides that, except for members of the TRS (with other
exceptions not applicable here), all state employees are members of
the ERS. Title llOB, 022.003. By statute, the membership of the TRS
consists of employees of boards and agencies of state educational
institutions and organizations. Nothing In the Surplus Property
Agency’s statute makes it an educational organization. Thus, the law
appears to require that employees of the Surplus Property Agency be
members of the ERS. Furthermore, there Is no statute or legal
decision that would put someone ou notice that employees of the
Surplus Property Agency are members of the TRS rather than the ERS.
See Falls County v. Mires, 218 S.W.2d 491, 494 (Tex. Civ. App. - Waco
1949, writ ref’d) (everyone is presumed to know statutes).. Therefore,
because under the law as written, employees of the Surplus Property
Agency should be members of the ERS. we think that the board member
you ask about comes within the scope of the 1977 amendment and that
the ERS must continue to accept contributions from him.
Also, the 1977 amendment to the ERS statutes allows admlnistra-
tive board mambers to make contributions after December 1977 only for
“subsequent, continuous board service.” Acts 1977, 65th Leg., ch.
279, at 746. The board member in question has served on two different
boards, but since 1977 he has been a member at all times of some
administrative board. It has been suggested that “continuous board
service” should be read to mean continuous service on a particular
board, rather than unbroken service on a board or boards. The phrase
is indeed ambiguous; however, because the legislature could have
easily required “continuous service on the same board,” we conclude
that “subsequent’ continuous service” should be construed to mean
unbroken administrative board service, whether the service is with one
board or more’than one.
SUMMARY
The Employees Retirement System must allow a
person who since 1977 has served without interruption
on the Veterans Affairs Cnmaission and the Surplus
Property Agency Board to establish service credit
with the ERS under Title llOB, section 23.502,
V.T.C.S.
JIM MATTOX -
Attorney General of Texas
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Mr. Marvfn J. Titman - Page 6 (JM-639)
JACK EIGETOWER
First Assistant Attorney General
MARYKELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 2895