Untitled Texas Attorney General Opinion ( 1957 )

THEAII‘ORNEY GENERAL OFTEXAS AuwrIN, II. TEXAH October 18, 1957 Honorable Henry Wade Opinion No. WW-283 District Attorney Dallas, Texas Re: Can the employees of the Dallas City-County Depart- ment of Public Welfare be brought Into the County's Dear Mr. Wade: Retirement System? You have requested an opinion of this office on the following questions: "1. Under the applicable constitutional provisions and laws, are full time employees of the Dallas City-County Department of Public Wel- fare employees of Dallas County ac- tually full time employees of Dallas County? "2. If the answer to the foregoing question is in the negative, are full time employees of the Dallas City-County Department of Public Wel- fare employees-of Dallas County 'in a position normally requiring not less than nine hundred (900) hours per year'? (There are about 1,980 normal working hours In a year for these employees and 990 of these hours are paid for by County funds.) "3. Is it legal for the em- ployees of the Dallas City-County Department of Public Welfare to be brought into the Dallas County Retire- ment System on either the basis of (a) all of their pay, or (b) half of their pay? "4. Is it legal for employees of the Dallas City-County Department of Public Welfare to be brought into - Honorable Henry Wade, page 2 (W-283) the Retirement System under any circumstances?" Subdivision (b) of Section 62 of Article XVI of the Constitution of Texas provides: "(b) Each county shall have the right to provide for and administer a Retirement, Disability and Death Compensation Fund for the appointive officers and employees of the county; provided same is authorized by a majority vote of the qualified voters of such county and after such election has been advertised by being pub- lished in at least one newspaper of general circulation in said county once each week for four consec'utive weeks; . . .' The Constitution of Texas sets 'upa method by which counties may provide for a County Appointive Officers and Employees Retirement, Disability and Death Compensation Fund, and likewise there is a constitutional provision pro- viding that incorporated cities of the State of Texas have the power and authority to provide a system of retirement. Section 51-e, Article III of the Constitution of the State of Texas provides: "See. 51-e e Each incorporated city and town in this State shall have the power and authority to provide a system of retirement and disability pensions for Its appointive officers and employees who have become dis- abled as a direct and proximate re- sult of the performance of their d~uties,OP have passed their sixty- fifth birthday, or have been em- ployed by such city or town for more than twenty-five (25) years and have passed their sixtieth birthday, when and if, b,utonly when and if, such system has been approved at an elec- tion by the qualified voters of such city or town entitled to vote on the question of issuance of tax supported Honorable Henry Wade, page 3 (WW-283) bonds; provided that no city or town shall contribute more than the equiva- lent of seven and one half (73) per centum of salaries and wages of the officers and employees entitled to participate in its pension system, and that said officers and employees shall contribute a like amount; and this Amendment shall not red,ucethe authority nor duty of anx city or town otherwise existing. The Constitution provides that each city or county may provide for its employees a Benefit Retirement Program. However, there is no provision for a joint City- County employee retirement program. The Dallas City-County Department of Public Welfare is jointly controlled by the City Council and Commissioners' Court. The budget of this department is approved by the Commissioners' Court and by the City Council, and the city and county each pays half of the total cost for the Public Welfare Department's operation. The employees of the Dallas City-County Depart- ment of Public Welfare cannot be considered either county or city employees due to the reason that neither the City Council nor the Commissioners' Court has complete super- vision and control over the Department. If either the County authorities or City author- ities were in complete control of the Public Welfare Depart- ment, then those employees engaged in rendering services in connection with the Department of Welfare would clearly come within the Retirement Benefits for City and/or County em- ployees as set out in the Constitution. Therefore, it is our opinion that since there is no constitutional provision for a joint City-County em- ployees retirement program, then the County has no authority to bring the employees of the Dallas City-County Department of Public Welfare into the County Retirement System. Hence, we answer questions 1, 2 and 3 in the negative. In reply to question 4, there is no way for the employees of the Dallas City-County Department of Public Welfare to be brought into the County Retirement System un- less the Department of Public Welfare becomes solely con- trolled by the County governing authority. Honorable Henry Wade, page 4 (W-283) SUNMARY The Constitution of Texas provides for both County and City employee retire- ment benefits; however, there is no constitutional provision for employees who are supervised and employed by a joint City-County Agency, and, therefore, as long as there is joint control over this Department the employees of the Dallas City-County Department of Public Weltare are not eligible to be brought into the County Retirement Pro- gram. Yours very truly, WILL WILSON Attorney General of Tex.as BY Linward Shivers Assistant LS:wam APPROVED: OPIWIOSUCOHMITTEE Gee. P. Blackburn, Chairman Ralph R. Rash Houghton Brownlee REVIEWED FOR THE ATTORNEY (IENERAL BY: James N. Ludlum