Untitled Texas Attorney General Opinion ( 1971 )

April 7, 1971
Honorable L. Dewitt Hale Opinion No. M-830
Chairman, Judiciary Committee
House of Representatives Re: Construction of House Bill
State Capitol 806 of the 62nd Legislature,
Austin, Texas 78711 R.S. 1971, as it relates to
the Judicial Retirement
Dear Mr. Hale: System of Texas.
Your request for an opinion reads in part as follows:
“H.B. 886 will convert numerous Courts of
Domestic Relations and Juvenile Courts into State
District Courts of general jurisdiction. Such
a conversion, as you are well aware, would
transfer the financing of these Courts from the
several counties to the State of Texas. Such a
conversion.would also result in making these
judges eligible for coverage under the Judicial
Retirement System. It is this last result which
has caused the need for an opinion from your of-
fice.
“Many of these Judges are now members of and
participate in the Texas County and District Re-
tirement System, for which regular payroll de-
ductions are made. Some of the Judges have been
participating in this system for many years. They
are naturally concerned as to their status under
such system should their Court be converted from
local to State financing. The Judiciary Committee
desires to protect the rights of all of these fine
Judges and to write the conversion statute in such
a way that each Judge can obtain the maximum cover-
age possible under one or the other of the two
retirement systems,
“To enable the Judiciary Committee to draft
this Bill in an intelligent way, we would deeply
appreciate your official opinion answering the
following questions:
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Hon. L. Dewitt Hale, page 2 (M-830)
“(1) If these Courts are converted to Dis-
trict Court status, can the Judges elect to retain
their membership in the Texas County and District
Retirement System by continuing to make voluntary
contributions thereto?
“(2) If these Judges can elect to retain
membership in the Texas County and District Re-
tirement System, and they do elect to do so? can
they thereby avoid the necessity for participating
in the Judicial Retirement System?
“(3) If these Courts are converted to Dis-
trict Court status, is it mandatory that each of
the Judges join the Judicial Retirement System,
or can they waive participation in such system
by electing to retain membership in the Texas
County and District Retirement System?
“(4) If these Judges elect to join the
Judicial Retirement System, can they legally
buy or otherwise obtain credit for time served
on the bench prior to the date of conversion?
“(5) If these Judges elect or are required
to join the Judicial Retirement System, are they
legally entitled to a refund of all contributions
theretofore made to the Texas County and District
Retirement System?
“(6) If these Courts are converted to Dis-
trict Court status, is it legally possible for
these Judges to maintain membership in both re-
tirement systems?
“(7) If any of these Judges has already
qualified for a vested retirement benefit under
the Texas County and District Retirement System,
and such Judge after the conversion serves as
District Judge long enough to vest a retirement
benefit under the Judicial Retirement System,
can he then legally draw benefits from both
systems once he reaches retirement age?”
Membership in the Judicial Retirement System of Texas
is limited to “Justices and Judges of the Appellate Courts and
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Hon. L. Dewitt Hale, page 3 (M-830)
District and Criminal District Courts". Article V, Section l-a,
Constitution of Texas.
Subsection (a) of Section 62 of Article XVI of the
Constitution of Texas provides in part:
II. . . Persons participating in a retire-
ment system created pursuant to Section l-a of
Article V of this Constitution shall not be eli-
~gible to participate in the Fund authorized in
this subsection.; and persons participating in
a retirement system created pursuant to Section
48-a of Article III of this Constitution shall
not be eligible to participate in the Fund au-
thorized in this subsection except as permitted
by Section 63 of Article XVI of this Constitution.
Provided, however, any officer or employee of a
county as provided for in Article XVI, Section 62,
Subsection (b) of this Constitution, shall not be
eligible to participate in the Fund authorized in
this subsection, except as otherwise provided
herein. . . .'I
Prior to the adoption of Section 63 af Article XVI of
the Constitution of Texas a similar ouestion was involved in
Farrar v. Board of Trustees of Emp. Retirement System of Tex.,
150 Tex. 572, 243 S.W.2d 688 (1951), relating to the Teacher
Retirement System and the State Employees Retirement System.
The Supreme Court held:
II. . . if one's retirement benefits as an
employee are to be based in part on services
rendered years ago as a teacher, the Employees
Retirement Fund will be to that extent depleted.
That result would not serve the dominant pur-
pose of the Employees Amendment as above discussed,
in fact, it would be antagonistic to it. And the
same would be true as to the Teachers Amendment
if one's benefits thereunder are based on and paid
in part for, service as an employee rendered long
before that amendment was adopted. Sec. 48a of
Article III of the Constitution, supra, clearly
restricts teacher retirement benefits to teachers,
while Sec. 62 of Article XVI, supra, with equal
clarity restricts employee retirement benefits
to employees. It follows that neither can be
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Hon. L. Dewitt Hale, page 4 (M-830)
suffered to encroach upon the. other; nor can
any other retirement system be permittea to en-
croach upon either of them, until the Constitution
is amended to permit it."
Subsequent to the Farrar decision, Section 63 of Article
XVI was adopted to allow memmf the Teacher Retirement System
and members of the Employees Retirement System to receive credit
for service and membership in both retirement systems. Section
63, however, is limited to the Teacher Retirement System and the
Employees Retirement System. Furthermore, as above noted, such a
blending of the Judicial Retirement System with another retirement
system is specifically prohibited by Section 62 of Article XVI of
the Constitution of Texas.
You are therefore advised that the Legislature may not
constitutionally authorize benefits under the Judicial Retirement
System to be based in part on services rendered as a member of
another retirement system, and likewise the Legislature may not
constitutionally authorize benefits of the District and County
Retirement System to be based in nart on services rendered as
a member of the Judicial Retirement System. Farrar v. Board of
Trustees of Emp. Retirement System of Tex., supra.
Your questions are accordingly answered as follows:
'(1) Judges of District Courts of general jurisdiction
created by the provisions of H.B. 806 may not retain their member-
ship in the Texas County and District Retirement System;
(2) Judges of District Courts of general jurisdiction
created by the provisions of H.B. 806 automatically become mem-
bers in the Judicial Retirement System;
(3) Judges of District Courts of general jurisdiction
created by the provisions of H.B. 806 may not waive participation
in the Judicial Retirement System;
(4) Judges of District Courts of general jurisdiction
. _
created by the provisions of H.B. 806 may not obtain credit for
services rendered as a member of the Texas County and District
Retirement System;
(5) Such Judges are legally entitled to a refund of
contributions made to the Texas County and District Retirement
System on termination of their membership in such system;
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. . .
Hon. L. Dewitt Hale, page 5 (M-830)
(6) Such Judges may not maintain membership in both
retirement systems; and
(7) Such Judges may not legally draw benefits from
both systems upon reaching retirement age.
SUMMARY
The Legislature may not constitutionally au-
thorize benefits under the Judicial Retirement
System to be based in part on services rendered
as a member of another retirement system, and
likewise the Legislature may not constitutionally
authorize benefits of the District and County
Retirement System to be based in part on services
rendered as a member of the Judicial Retirement
System. Farrar v. Board of Trustees of Emp. Re-
tirement System of Texas, 150 Tex. 572 243 S.W.2d
688 (1951) ; Article. V Section l-a, Teias Consti-
tution; Article XVI, section 62, Texas Constitution.
Very truly yours,
CRAWFORDC. MARTIN
Attorney General of Texas
First Assistant
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Banks
J. C. Davis
John Grace
Houghton Brownlee
MEADEF. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant -4024-