Untitled Texas Attorney General Opinion ( 1944 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN i Honorable C. Be Cavne88 State Audltrr Awtln, %~~X.WI Dear Mr. cavnear: ts far our oonsldora- r Retirement sy8ta3o OOQpt th0 State'8 sentributlens to the 0~08 Of stats are paid In whcle tho gonoral revenue fund* ed vhehher 8uoh warrants Fund warrant8 are ostlon, we would observe in tb begln- a8 &3nnSlalf+tXtd liarl'&nt8 am payable Of this StatO. It i8 tPUe that they order sf lssuanoe, and that bwauss enoy of revenues 8upporting the fund, It ths after 188uanoe of general revonus war- rant8 before the State is able to redeem thom in Oa8h. State varranta do not oonitltuts payment of the oblig8tions they are drawn to oover; their i8sWMIOe doe8 not discharge th8 obligation to pay. They an merely order8 116 Honorable C. H. Cevne88, Page 2 dravn by one ef the Slsoal offloors of the government upon another, directing the latter to pay out of named funds, when available, 8 8peoified 8um to a named per8en, Payment of the salary of an employee OS the State OS TeXa8, there- Sore, Is accomplished not by the 188uanoe of a warrant whereby the Treasurer Is directed to pay him 8 oertain EUP, buud18 oonsummsted only by redemption of the warrant 80 ls- l With tho above prinolples In mind, ve would examine the following provi8lon8 of the Teaohor Retirement Aot which ve OOn8idOr pertinent to the inquiry submitted In yo\rletter: "sec. 8 "1C The Teacher Saving FPnd. '(8) The TeaohherSave She11 be 8 fund In which shall be eoa ted regular five (5) per OentUn contributions from the ooapense- tlen of memb8r8, including OIIrrentinterest earn- ings* Contributions to and payments from the Teaoher Saving Fund shall be made a8 Sollow8: "(b) Bach employer shall oauae to be de- ducted from the selery of eaoh member en each and every pay roll of such emplo er Ser each Andyevery pay roll period, Site s 5) per oentum of his earnable compensation, prevlded th8 t the of the deduction8 madj for a member shall 8x.811 not exceed Cne Hundred and Eighty Dollara ($180) during any one (1) year. Deductions shall be- gin vlth the first pay roll period of the 8ChoOl year 1937-38. In determining the amount earn- able by a member In 8 pay roll perled, the State Board of Trmsteea may Consider the rate ef an- nual eompensatlon payable to 8uc.hmember on the first day of the pay roll period a8 continuing throughout such pay roll peried, and it may omit deduction from compensation for any period less than a f'ullpay roll period if a teacher vas net a member on the first day of the e roll period, and to Saoilltate the making ef Honorable C. Ii.Cavnea8, Page 3 deduotl~s, It 8u1~m~$lfy the deduotlon re-_ -- q~lred Of any member by 8~On an amOulltes SILSll not exceed one-tenth (l/10) of one (1) per oen- t\rmof the annual compensation upon the basis of whioh such deduction Is to be made* "(c) The deduction8 provided for herein 8hall be made notwithstanding that the mlnhum colnpensetlonprovided for by law for any member shall be reduoed thereby* Every member ahall be deemed to oonsent and agree to the deduo- tlons made and prevldod for herein and Shafl:re- celpt for his full selery or 00Plpen8etlon,and payment OS salary or OO~eMbtiOn. le88 said deduction. c&all be a Sull and OOmDlete dls- charge and acqulttanoe of all alaim and de- 8iandawhataoovor Ser the sorvloos ronderod by such persollduring the period oovered by suoh payment, except es to the benefits provided under thl Act. The employer shall certify to the StateaBoard of TIW8tOeE 0x1each and every pay roll, or In such other manner a8 eeld Board may presoribe, the amount8 to be deducted; and -when deducted shall be paid into said Teacher Bavlng Fund, and shall be credltod, to the In- dividual eocount of the member frolpwhose oom- pensatlen said de&uctlon we8 made. " . . . . “8. Celleotion or Contributionso "(1) The oolleotl0n of members3 contribu- tiOM.8hall be aa r0il0vs: "(a) Each employer shall cause to be de- ducted on each and every pay roll of 8 member for each and every pay roll period subsequent to the date of establishment 0S the Retirement System the contributions payable by such member, as provided In this Act. Each employer shall certify to the treasurer QS 88id OmplOyOr on each and every peg roll a statement es vouchers for the amount 80 deducted* 118 Honorable C. Ii. CsvneIsL), Page 4 "(b) The treasurer or proper disbursing offlcetiof each employer on authority from the employer shall make deduotions from salaries of teachers a8 provided in this Act, and ahall transmit monthly, or at such t&no as the State Board of Trustee8 shall designate, a certified copy 0s the pay roll, and the amount 8peoified to be deducted shall be paid to the Executive Secretary of the State Board of Trustees, and after making 8 record of 811 reoelpts, the said Board shall pay them to the Treeaurer of the State of Texas, and by him be credited to Teeoh- er Saving Fund, and euch funds shall be deemed as epproprlated for we according to the provi- sions of this Act. For the purpose of oolleot- i.ngcontributions of teaohers who are teaching in common school di8triCtS, the oounty auperin- tendent or ox officio county superintendent of eeoh cehnty OS this State is hereby designated to perform the dutlea of employer of all oo?mwm 8chool district8 ever vhich he has jurisdiction, and he ia hereby authorized and empiwieredto re- tain the amounts 80 deducted from pay rolls of hremberaand have a correapondlng amount deducted from any funds available for paying teachers1 (ralarles,and transmit mme to the Exeoutive Seoretary of the State Board of Trustees a8 pre- vlded for In this Act. Any dbllege or unlveraltp or other educational m%itutlon or agexmy orted in whole or In part by the State sha ve the amount retalned or deducted Zrem the tida regularly appropriated by the State for tie c%rrent maintenanoe for such eduCationa de- partments end instItutiona. n . . 0 . "(8) The State Tpeasurer shall furnish an- nually to the State Board of Trustee8 a sworn statement of the amount of the funds in his cus- tody belonging to the Retirement System. The records of the State Beard of Prustees shall be open to public inspection and any member of the Retirement System ahall be furnished with 8 state- ment of the amount to the credit of hi8 individual 119 Honorable C, H. Cavness, Page 5 account upon written request by such member, provided that the State Board of Trustees shall not be required to answer more than one euoh re- quest Of a member in any one year.” (&pha8ls supplied) (Sea. 8, Art. 2922-1, Vernon’s Civil Statutes, as amended by Chapter 377, Acts 48th Legislature). A8 to “any college or university or other eduoa- tlonal institution or agency supported ln whole or ln part by the State,” the act expressly providea that the amounts required to be retained or deducted shall be retained or deducted “from the fund8 regularly a~rlated by the State for the current sw$.ntenanoefor such eduostlonal department6 and lnstltutlons. Obvlouaiy, It was oontemplated by this provision that the suma deductible under the act from the compensation of persons employed by the State es employer should be re- tained by the officials representing the State in the pay- ment of his salary. It was not within the contempletlon of the act that the S’undsrequired to be retained should be paid to the employee, or that he should be required to ad- vance the amounts from his pereonal funds; certainly It Is beyond the terms or intention of the act that he shoold be required to advance the amount8 to the Teacher Retirement e In advance of the time the State pays his salary to . The objection has been raised that IS the Teacher Retirement System accepts general fund warrants, no lnvest- ment can be made of the sum8 represented by the verranta uu- tll the time they are paid, and further that the fund might be required to pay over, ln cash, moneys to wlthdravlng mem- beI- in advance of the time the warrant8 actually are payable. Relther objection Is tenable: there can be no obligation on the part of the offlcera managing the Fund either to invest money8 before they are receivable, or to return money8 prior to the time of actual payment into the fund. You are respectfilly advised, therefore, that under the express terms of the Teacher Retirement Act, it la the duty of the employing agencies to withhold and retain thelems de- ductible under said Act from the salaries of persons employed b 120 Honorable C. H. CavneBs, Page 6 by the State. Such f’undsare not to be paid, nor are war- Nlsts for the deductible Items to be payable, to the In- dividual, but the 8ame am to be retained by the State, in the hands of its OSfiOer8,and transferred to the appro- priate accounts of the Retirement System “from the fund8 regularly appropriated for the current maintenance” of the departments or Institutions affected, To the extent that our opinion O-5492 may be considered to be In conflict herewith, the earlier opinion Is aocord- lngly modified. Very truly yours ATTORKEY QEI4ERAz, OF TEXAS GK:ff