Untitled Texas Attorney General Opinion ( 1971 )

- .
THE ATTORNEY GENERAL
OF -XAS
May4, 1971
Hon. John A. Traeger Opinion No. M-848
Chairman, Constitutional
Amendments Committee Re: Construction of proposed
House of Representatives amendments to Section 48a
P. 0. Box 100, Capitol Station of Article III of the Con-
Austin, Texas 78767 stltution of Texas relating
to the Teacher Retirement
Dear Mr. Traeger: 'System of Texas.
Your request for an opinion on the above subject matter 1
asks the following questions:
"1. Would S.J.R. 9, If passed by a two-
thirds majority of both Houses of the Legis-
lature and approved by the electorate at the
general election in November, 1972, revive
Section 7 of S.B. 292, 60th Legislature,
Regular Session, 1967 (V.C.S. Article 2922-ll)?
"2. If the provisions of both S.J.R. 2
and S.J.R. 9 should pass at the election in
November, 1972, would one invalidate the pro-
visions of the other?"
Section 48a of Article III of the Constitution of Texas
provides in part:
II
. . . no person shall be eligible for
retirement who has not rendered ten (10) years
of creditable service in such employment, . . .'
The proposed amendment by S.J.R. 2 would reduce the ten-year
minimum service requirement to five years.
Section 48a further provides:
,I
. . . the recipients of such retirement
fund shall not be eligible for any other state
I Both S.J.R. 9 and S.J.R. 2 are pending in the 62nd Leg., R.S.,
1971.
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Hon. John A. Traeger, page 2 (M-848)
pension retirement funds or direct aid from the
State of Texas, unless such other state pension
or retirement fund, contributed by the state,
is released to the State of Texas as a con{ition
to receiving such other pension aid; . . .
The proposed amendment by S.J.R. 9 would remove the last quoted
provision from Section 48a.
In Attorney General's Opinion M-196 (1968) it was held
that Section 7 of Article 2922-lij Vernon's Civil Statutes (Op-
tional Retirement Program for Teachers) violated the last quoted
provision of Section @a of Article III; Constitution of Texas.
The amendment to Section 48a proposed by S.J.R. 9 would rem*?
from the Constitution such prohibition, but would contain the
prohibition that 'no person shall be eligible for retirement who
has not rendered then(10) years of creditable service in such em-
ployment."
The proposed amendment to Section 48a by S.J.R. 2 would
reduce the ten-year requirement to five years creditable service,
but would not remove the prohibition relating to receiving benefits
from more than one retirement fund,
Therefore you are advised that if S.J.R. 9 is adopted by
the people and S.J.R. 2 is not adopted, the prohibition relating to
the receiving of State retirement funds from more than one retirement
fund would no longer be contained In the Constitution, and Section 7
of Article 2922-11, Vernon's Civil Statutes, would no longer be in-
valid. Since Section 7 has not been judicially2 determined to be
invalid, It Is our opinion that if the prohibition referred to In
Attorney General's Opinion M-196 (1968) Is removed from the Texas
Constitution, Section 7 would be in full force and effect. If, on
the other hand, S.J.R. 2 Is adopted by the people, such prohibition
would remain In the Constitution of Texas and Section 7 would be in
violation of Section 48a as amended by S.J.R. 2 for the reasons stated
in Attorney General's Opinion M-196. Likewise, if S.J.R. 9 is
2 Opinions of the Attorney General are not judicial declarations
of the law as are opinions of the Courts. His opinions are ad-
visory only. Articl~e4399, V.C.S. While they may be disregarded
as not having the force of law (Opln. No. 0-7234-A, 1946), on the
other hand they will be given great weight by the courts unless
clearly wrong. San Antonio Union Junior College District v. Daniel,
146 Tex. 241, 20b S.W.2d 995 (194/l; 93 Tex.Jur.2d 2b2-263 Statutes,
177. Failure to follow the opinion of the Attorney General'may be
evidence of lack of good faith (Opln.No. O-4715, 1942), while one whc
does in good faith follow such an opinion may be entitled to receive
favorable consideration by the courts which he would not otherwise
receive. Wichita County v. Robinson, 155 Tex. 1, 276 S.W.2d 509, 515
517; Opin. No. WW-b71 (1959) .
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Hon. John Traeger, page 3 (M-848)
adopted, no person who has not rendered ten years of creditable
service In the employment of the public schools, colleges and
universities, supported wholly or partially by the State, shall
be eligible for retirement for the reason that Section 48a of
Article III, as amended by S.J.R. 9 would contain such prohibition.
Therefore, in answer to your second question, you are
advised that If both S.J.R, 2 and S.J.R. 9 are adopted by the
people, the ten-year requirement contained In Section Q!a as
then amended by S.J.R. 9, would apply as well as the prohibition
against receiving State pension retirement funds from more than
one retirement fund would apply. If both S.J.R. 2 and S.J.R. ‘3
were to be adopted, no constitutional change would be effected.
S U M M A R Y
S.J.R. 2 and S.J.R. 9 propose two different
amendments to Section 48a of Article III of the
Constitution of Texas, relating to the Teacher
Retirement System of Texas. If S.J.R. 9 is
adopted and S.J.R. 2 is not adopted, the pro-
;lbltlon currently contained In Section 48a,
. . . the recipients of such retirement fund
shall not be eligible for any other state
pension retirement funds or direct aid from
the State of Texas, unless such other state
pension or retirement fund, contributed by
the state, Is released to the State of Texas
as a condlt$on to receiving such other pension
aid; . . will be removed from the Constitu-
tion of Texka. If S.J.R. 2 Is also adopted,
however, such provision will not be removed from
the Conntitutlon of Texas,
If S.J.R. 9 is not adopted, the ten-year
minimum service requirement for eliglbillty under
the Teacher Retirement System will be reduced from
ten to five years, If S.J.R. 9 is also adopted,
however, the ten-year minimum service requirement
will remain In the Constitution of Texas.
If both S.J.R. 2 and S.J.R. 9 were to be
adopted, no constitutional ch ngc would be effected.
A
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Hon. John A. Traegcr, page 4 (M-848)
Prepared by John Reeves
Assistant Attorneg General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Houghton Brownlee
J. C. Davis
Bob Lattlmore
Max Hamilton
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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