Untitled Texas Attorney General Opinion ( 1966 )

A NEY GENERAL
EXAS
Honorable Robert S. Calvert, Opinion No. C-705
Comptroller of Public AccQUntS
Austin, Texas Re: Whether control of the build-
ing and grounds purchased
with Texas Employees Retire-
ment System Trust funds is
within the jurisdiction of
the State Board of Control
Dear Mr. Calvert: or the Retirement System.
By two letters to-this office, ,one~dated May 16, 1966,
and the other dated May'l9, 1966, you have requested an opinion
in regard to the aboye~mat~tgr. ,VIequote from your letters as
follows:
Letter of'~Mav~16th.
"The Texas Employees Retirement System, out
of Trust funds (Article 6228a R.C.S.) under the
control of that agency has recently completed an
office building and it is now being occupied by
the retirement system.
II
. . . .
"The management and control of the building
and grounds necessarily,calls for the expenditure
of funds from the State,"Treasuty.orthe Trust
funds with the State Treasurer under the control
of the retirement system, This expense raises
the question as to~what agency shall supervise the
maintenance and operation of the building and
grounds.
"Please advise if the control of the build-
ing and grounds is under the jurisdiction of the
State Board of Control or the Retirement System?"
-3403-
Hon. Robert S. CalVert. Page 2 (C-705)
Letter of Mav 19th
II
. . . .
"It was further discussed at that time, in
anticipation of accounts for repair and improve-
ments of the building and grounds which could
not be considered as a part of the original cost
to submit to you the question now in your office.
The information needed by me is to determine what
approval should be required for passing for pay-
ment bills covering the type in question: Employees
RetirementsSystem, Board.of Control or both?"
Article 622Sa;Section 2, Vernon's Civil Statutes,
as amended, provides, fin part. as follows:
"A. The Employees Retirement System of
Texas heretofore,established under the laws of
this State is hereby eontinued in corporate exist-
ence . . . and the management and operation of
said system from the effective date of this Act
shall be governed by the provisions of this Act.
"B. Said system shall continue to be known
as the Employees Retirement System of Texas, and
by such name all of its business shall be trans-
acted, all of its funds invested, and all its cash.
securities and other properties shall be held.
81
. . . .
"D. The Retirement System shall have the
powers and privileges of a corporation and shall
have also the powers,,privileges and immunities
hereinafter conferred.-"~
Section 6 of Article 6228a. provides in part that:
"1. The General Administration and responsi-
bility for the operation of the Retirement System
and for making effective the provisions of the Act
are hereby vested in a State Board of Trustees
II
. . . .
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Hon. Robert S. Calvert, page 3 (C-705)
Section 7 of Article 6228a. provides that:
"C. The Treasurer of the State of Texas
shall be the custodian of all bonds, securities,
and funds. All payments from said funds shall be
made by him on warrants drawn by the State Comptrol-
ler of Public Accounts supported only upon vouchers
signed by the Secretary of the Retirement System
and the Chairman of the State Board of Trustees.
A duly attested copy of a resolution of the State
Board of Trustees designating such persons shall
be filed with said Comptroller as his authority for
issuing such warrants."
Section 13 of Article 6228a provides, in part, as
follows:
I,. . . All provisions of the law inconsistent
with the provisions of this Act are hereby repealed
to the extent of such inconsistency . . . ."
The land and building in question were purchased pur-
suant to Senate Concurrent Resolution No. 17, Acts 59th Legis-
lature, Regular Session 1965, page 1978, which contained, in
part, the following:
"WHEREAS, The Board of Trustees of the Bm-
ployees Retirement System of Texas has requested
Legislative advice concerning the acquisition of
suitable real property and the construction of an
office building for the System: and
II
. . . .
"WHEREAS, Under the provisions of the Re-
tirement Act, funds are available to acquire
both the land and the building contemplated by
the Board of Trustees of the Employees Retire-
ment System . . .: and
"WBEREAS, It will not require any additional
legislation other than this resolution for the
Board of Trustees to acquire such land and con-
-3405-
Hon. Robert S. Calvert, page 4 (C-705)
struct a building for the Employees Retirement
System to be paid from the Expense Fund: now
therefore, be it
"RESOLVED, By the Senate of the State of
Texas, the House of Representatives concurring,
that the Board of Trustees of the Employees Re-
tirement System of the State of Texas be authorized
to purchase a,suitable site and to erect thereon
a building adequate to house the employees and
the files of such System;
. . . .I,
1,
It is clear from those portions of Article 6228a quoted
above that the Retirement System is a corporate entity. Section
2. B. of Article 6228a, quoted above, provides that all properties
of the Retirement System shall be held in the name of the "Em-
ployees Retirement System:of~:Texas'?.
Article 622Sa~,placesthe administration of the Retire-
ment System in the hands of the Board of Trustees, and the State
Treasurer is made custodian,,,of,allbonds, securities, and funds
belonging to the Retirement System. The statute provides that
all payments from Retirement System funds under the custodian-
ship of the State Treasurer shall be made by the Treasurer on
II
. . . warrants ~drawnby the State Comptroller of Public Accounts
supported only upon vouchers signed bv the Secretary of the
Retirement System and the-Chairman of the State Board of Trustees."
(Emphasis added.)
Artiale 665, Vernon's Civil Statutes, provides, in part,
that:
"The State Board of Control shall have charge
and control of all public'buildings, grounds and
property of the State, . . . and is charged with
the responsibility to properly.care for and protect
such property from damage, intrusion or improper
usage . . . . And the Board shall be authorized to
provide for the allocation,of space in any of the
public buildings to the departments of the State
Government and for thg'yses authorized by law to
: ;3406-
,,
. .
Hon. Robert S. Calvert, page 5 (C-705)
have and occupy space in the State buildings, and
shall be authorized to make any repairs to any such
buildings or parts thereof necessary to the service-
able accomodation of the uses to which such build-
ings or space therein may be allotted."
If the building and grounds in question were held to
be under the control of the Board of Control pursuant to Article
665, then by virtue of such holding, the Board of Control would
be vested with the right to provide for the allocation of space
in the building to the various departments of the State govern-
ment. Such an allocation of space for the use by other depart-
ments of the State government would be inconsistent with the
legislative intent as manifested in Article 6228a and Senate Con-
current Resolution No. 17, cited above, and would be in contra-
vention of the trust nature of the property, as hereinafter dis-
cussed.
This office held in Attorney General's Opinion WW-565
that the funds of the Employees Retirement System are the pro-
perty of a trust created for the benefit of a class of citizens
of this State. Opinion WW-565 was based on the authority of
Friedman v. American Surety Co. of New York, 137 Tex. 149, 151
S.W.Zd 570 (1941) wherein the Supreme Court of Texas was concerned
with the status of the Employees Compensation Fund and the
necessity for specific legislative appropriation prior to the
expenditure of certain monies belonging to the fund. In conclud-
ing that legislative appropriation was not necessary, the Court
stated:
4,
.the fund created by the Act in its
. .
very inception becomes the property of a trust
created for the benefit of a class of citizens
of this State . . . . The taxes are levied and
collected for such fund, and not for the State
in its sovereign capacity."
It necessarily follows that the building and grounds
in question having been acquired with trust funds, are impressed
with the trust and remain trust property, subject to the manage-
ment and control of the Board of Trustees of the Texas Employees
Retirement System and do not fall within that category of pro-
perty placed under the management of the State Board of Control
-3407-
- .
Hon. Robert S. Calvert, page 6 (C-705)
by Article 665.
SUMMARY
Control of building and grounds purchased
with Texas Employees Retirement System Trust
funds is within the jurisdiction of the Board
of Trustees of the Texas Retirement System.
Payment of accounts for maintenance of and im-
provements to the building and grounds of the
Retirement System should be made by the Treasurer
out of the Texas Employees Retirement System
Trust funds on warrants drawn by the State
Comptroller supported only upon vouchers signed
by the Secretary of the Retirement System and
the Chairman of the State Board of Trustees.
Yours very truly,
WAGGONER CARR
Attorney General
By:-&=+
Lewis E. Berry, Jr.
Assistant
LEBjr:ra
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Paul Phy
C. Daniel Jones, Jr.
John Reeves
W. 0. Shultz
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright
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