Untitled Texas Attorney General Opinion ( 1969 )

THE A JRNEY GENERAL EXAS Honorable Frank M. Jackson Opinion No. M- 421 Executive Secretary Teacher Retirement System of Texas Re: Constitutionality 314 West llth Street of Section 14, Senate Third Floor, Lowich Building Bill 110, 61st Legis- Austin, Texas lature,lg69,and related questions. Dear Mr. Jackson: you reoently requested the opinion of this office on the following questions: “1, Is Section 14 of Senate Bill 110, 61st Legislature, 1969,in conflict wlth the Constitutionof Texae? "2. If your answer to question No. 1 is in the negative, would persons who are currently employed by the Texas Eduaation Agency.,andwho transfer to the Commission for Rehabilitationon September I, 1969 have the choice of remaining a member of the Teacher Retirement System or becoming a member of the State Employees Retirement System with their beneflts governed by Chapter 75, 54th Legislature, 1959? "3. If your answer to question No. 1 is in the affirmative,would all employees of the CCQI- mission for Rehabilitationcreated by Senate Bill 110, 61st Legislature, 1969,be required to become members of the State Employees Re- tirement System on September 1, 1969? "4. If your answer to questions No. 1 and NO. 3 is in the affirmative,would retirementbene- fits for persons who are currently employed by the Texas Education Agency, and who on September 1, 1969transfer to the Commission for Rehabilitation,be governed by Chapter 75, 54th Legislature,'1955 as amended by Chapter 230, 56th Legislature,19591" - 2105- Honorable Frank M. Jackson, page 2 (~-421) It is our oplnion that the answer to question one is E and the anawer to question two is YES. Senate Bill 110, 61st Legislature,1969, establishes as an agency of this state, a Commission for Rehabilitation, and prescribes its powers, duties, functions, financing and procedures. Section 14 of the Act, the part in question, reads as follows: "Personnelof the Division of Vocational Rehabilitationand the Division of Disabll- ity Determinationof the Central Education Agency hereby transferredto the Canmission~ shall have the option of retainingmember- ship in the Teacher Retirement System of Texas or becoming members of the hployees RetirementSystem of Texas under the provi- sions of Chapter 75, Acts of the 54th Legis- lature, Regular Session, 1955, as amended. Bnployees hired after the transfer shall be members of the Employees Retirement System of Texas." The State Constitutionis not a grant of powers as is the Federal Constitution,but la Instead a limitation of powers. The Legislaturehas power to pass any legislationnot expressly prohibited by the Constitution. Attorney Qeneral's Opinion M-196 (1968). It Is necessary then to determine If the pro- visions of~Secti.on14 of Senate Bill 110 contravene any limitation contained in the Texas Constitution. The Texas Constitution,Article III, Section 48a, as amended November 5, lz68,authorizes the creation of the Teachers' Retire- ment 'System, ...to provide retirement ...for persons employed in the public schools...". The definition of "public schools" and "persons employed in the public schools," is left to the Legislature. The Legislature has defined "public schools."House Bill 241, 61st Legislature, 1969, states in Section 1.02(2): "'Public school' means any educational Institutionor organizationin this state which under the laws of Texas Is entitled to be supported wholly or partly by state, county, school district, or other municipal corporation funds." Article XVI, Section 62 of the Texas Constitution,as amended November 5, 1968, authorizes the Legislature to provide -2106- . . Honorable Frank M. Jackson, page 3 (~-421) for a State Retirement,Dlsablllty and Death CompensationFund for the officers tnd employees of the State, and provides that the Legislature, ...may make such reasonable inclusions,ex- clusions, or classificationsof officers and employees of this State as it deems advisable.::Further, it creates the Employees Retirement System of Texas, ...the rights of membership in which,,,shall be governed by the provisions herein contained and by present or hereafter enacted acts of the Legislaturenot inconsistentherewith." The employees of the Central Education Agency transferred by the terms of S.B.l10 to the Commission for Rehabilitation, are presently lawful members of the Teachers' Retirement System. The newly formed Commission for Rehabilitationis supportedby State funds, Is for educationalpurposes, and is, in our opinfon, well within the definition establishedby H.B. 241, for a "public school"; therefore, the transferredemployees are qualified to remain members of the Teachers' Retirement System. The provisions of Article XVI, Section 62, empower the Legislature to "make such reasonable inclusions,exclusions,or classificationsof ...employees...asit deems advisable,"and to determine "the rights of membership" in the State Employees' Retirement System. The provisions of Section 14 of S.B. 110 providing that new employees of the newly formed Commission for Rehabilitationwill becane members of the Employees' Retirement System Is an exercise of this power. The Legislature has deemed it advisable to classify per- sonnel being transferred frcm the Central Education Agency, to the Commission of Rehabilitation,as one group of state employees. The Legislature has deemed it advisable to classify employees hired after the transfer, a second group of state employees. The Legislaturehas delegated to each state employee in the first group, the power to Include himself in, or exclude himself from, participationin the state employees' retirementplan. The choice to exclude himself is, in effect, a choice to remain in the Teachers' Retirement System. The Legislature has not delegated a power of choice to those employed after the transfer,but has included this second group of employees In the State mployeesl Retirement plan. This Legis- lative Inclusion automaticallybars the second group from partici- pation in the Teachers' Retirement System. The employees of the new Commission for Rehabilitationare employed in the "public schools" and are state employees. The -2107- . . Honorable Frank M. Jackson, page 4 (M-421) Legislature could have placed these employees In either of the two retirement systems: furthermore,no problem of prior service credit would have existed. Article XVI, Section 63, of the Texas Constitutionprovides for reciprocationof service credits for employees transferring from either of the above retirementssystems to the other. The only restriction imposed by the Constitution is that no employee may be a member of both systems at the same time. There Is no constitutionalprovision which prevents the Legls- lature from allowing employees to exercise their own choice con- cerning which system they desire, provided they are qualified for both systems. We find nothing to Indicate that the classificationsmade by Section 14, of S.B. 110, are unreasonable,and therefore we snswer your first inquiry in the negative and your second in- quiry in the affirmative. In view of our answers to the first two questions, it is unnecessary to answer your third and fourth questions. SUMMARY Section 14 of 'SenateBill 110, Acts of the 61st Legislature, 1969,Is not in conflict with the Constitutionof the State of Texas. Personnel of the Texas Education Agency, trans- ferred to the Commission for Rehabilitation, on September 1, 1969,have the option to remain a member of the Teachers' Retirement System or to become members of the State Employees' Retire- ment System. ney Qeneral of Texas Prepared by Samuel D. McDaniel and Tom Neely, Assistants Attorney Qeneral - 2108 - - . . Honorable Frank M. Jackson, page 5 (~-421) APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman George Kelton, Vice-Chairman Robert C. Crouch Ray McGregor Bill Corbusier Ralph Rash HAWTHORNE PHILLIPS Executive Assistant -2109-