Untitled Texas Attorney General Opinion ( 1947 )

R-663
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OFE’ICE OP
,mE kFTOR% &-NER&
AUSTIN. TEXAS
PRICEDANIEL
GENERAL
*TTO*NEY August 13,..
1947 '.
Major Genera1.K. L. Berry Opinion No. V-336
The Adjutant General of Texas
Austin.t.Texaa $8: ~Eligibllityof ac-
aounting and cua-
.'todialclerks in
1 the,office of the
U.,6. Property and
Disbursing.Orricer
for Texas toqbene-
fita under the Em-
ployees~Retirement
System or Texas.
Dear Sir:
Your request for an'opinionon .thaa.bovesub-
ject is as followa:~ ~.- ~'
"H. B. 168, Fiftieth LegislatureIof
Texas, providesfor certain retirement
benefits, State employees.:,Paragraph 1,.
Ciroular No. A, 7 May 1946, office of the
Chief, National Guard Bureau authorizes
the Adjutant General of the State to em-
ploy and/or disoharge,civilian ticcount-
ing clerks to assist the U. 6. Property
and Disbursing Officers insthe perform-
ante of theirduties. Paragraph 6 of t&s
same circular authorizes the Adjutant Gen-
eral to determine the rate of pay of the,
above mentioned accounting~olerkswithin
limitations. Paragraph 7 of this circu-
lar authorizes the State Adjutant General
to determine the hours of work' 'the ac-
counting clerks thus employe~d, u speci-
f not be
fies that said hours of work wil
leas than those set for other employees
of the State engaged 'insimilar work.
"Althoughthe subject accounting
clerks a'repaid from~Federal.funds,,they
are in effect State employees, sincethey
a.reemployed by the Adjutant General, who
sets their rate of pay, and determines the
Major General K. L. Berry, Pa&e 2, v-336.
number of hours they shall work. The Ad-
jutantGenera1 also may discharge said em-
ployees. In view or this your opinion is
requested on the following question:
"Are accountingandcystodial clerks
employed in the off300 or the u..S. Prop-
erty and DisbursingMficer for Texas,.
under the provisions of N. 0. B. Circular
No. 4, 7 May i9 6, subject ~tothe provia-,
ions of H. D. 1ii
8; Fiftieth Legislature of
Texas, and are they eligible for retire-
me&under said ~bill?
"If the opinion of the Attorney Gen-
eral on-this question is not in the ar-
.fi?znativa,then informationis desired as
to whether subject employees oan become
eligible for retirement,under the provis-
ions of H. B. 168, while they are perform-
ing services for the State of Texas, and
receiving their pay from Federal funds." ~':.
' The eligibilityof the described employees
depends solely upon whether they are withinthe con: ``~_
templationof House Bill No. 168.
From examination.of.the.~cotnplete
Aat, .we
donolude that such employees a.renot contemplated~by
the Act.
The.%embership.annuityvdefined i.nSubseo-
tion Q of Section l,,whia,his one of the elements of
the benefits,provided~for, is made up.Of %%3erve
funds contributedby a megber~*'an eq\al~amount,~
of
reserve funds contributed& --the.%%e.' --
While the State mightcontribute~to t&h a
reserve fund on a basis of 'somepercgntage.~of.~the,
ai
mountspaid such~employees.by.the,Fedara,lGovernment,
the Act does not so~.aontemplats:..QubseotionA Of.Sec-
tion 8 provides that "all contributions.madeby the
State shall be~fromand:charged.tothe respeotiva, funds
appropriated,allocated,~andprovidad,t,o,paythe sal-
ary or oompensation,of,~,ths
amploya~efor .whosabenefit
the oontribut1on.i~mad~e.n,The fund,,oreated by aon-
tributionsby the.State of Texasaa part of the total
funds of the Systemis oalled the Wtat,e Membership
AccumulationPund." Contributionsby the state as set
Major Caneral K. L. Berry5 Page ,3, V-336.
203
out in Subparagrapha~.ofParagraph 2 of $ubaeotlon
A of Section 8 ia~.,under,a~plan'ivhereby
the State oon-
tributes funds neoeasaryto make up ita.allooate'por-
tlon of the fund'savailable for benefits to members.
The meohanics for oolleationof the State's oontribu-
tions is contained inParagraph Z.of.,Subaeotion B of
seation 8.which contemplatesatthe outset that funds
appropriated to the payment'.of salaries shall be,re-
appropriatedto the exte.ntneoesaary to make up,the
initial.oontribution,by the``state.This Procedure
is oarried out by oertifioa,tlon bythesSta.teBoard of
Trustees for the.Retirehient'System to the State Comp-
troller of Publio Accounts and the State.,Treaaurer of
the total aompenaationpaid to members and upon whioh
the necessary amounta..are computed~and transferred by
the Ctiptrollertomthe 'StateEmployees Retirement Fund
rromthe reapeotive funds appropriatedto departments.
Thereafter,similar certificationsare made before eaoh
session of the Legislature in order tha,tproper appro-
priations may be made. Obviously from the.abwe, it
appears that this law oould not be oanplied.wd.th in rea-
peot to,the employees named Sn your inquiry, if for no
other reason than that the~initial contributionsby the
State~are taken from appropriationsby the State Legia-
lature setting up the normal funds'ror~thenpayment of
-employeesof the State. The ,employeesabout whiah you
inquire are.not @aid-from State apprspriations,and
therefore,no manhinery is prOvidedfor a contribution
by the State in their behalf.
Further evidenoe of the faot that such em-
ployeesas you inquire about are not oontemplatedby
the Act, is disclosed by the method provided for ef-
fecting the employee's contributionto the fund. .Sub-
paragraph a Of:Paragraph1 of Subsection B Of Section
8 dealing with the golleotion of member's contributions
preaoribea that "each department of the State shallcause
to be deduoted on each and every pay roll of a member
for each.end every pay roll period beginning on the date
of thenestablishmentof the membership.and full opera-
tion or the Retirement System the contributionspayable
by'such member, as provided in this Act . . ." Subpara-
grtiph'b'maikes
further provisionsdealing with payroll
deduations; The provisions of the Aot further provide
that payrollsdeauationsand membership shall be auto-
matio. Obviously,the State of Texas is in no pOSitiOn
to enforce nor to effect payroll deductions from a Fed-
eral payroll.
,
b¶ajorGeneral K. L. Berry, Page A, V-336.
2134
Therefore,under the_circumstancesoutlined
in your letter, it is the opinion of,thla departments
that such accounting clerks are not contemplatedby
House Bill No. 168.
As to your final inquitiyand ~requeatfor ink'
formation as to whether auch.employees,oanbecome elig-
ible for retirement,we have zead the entire Act-and
find no provision for the acoeptanoe of members other
than those employedand paid by the State. We might
suggest that should the funds from whioh such etiploy-
eea are paid be contributeddirectly to the4tate iron
the Federal Governmentand thereafterappropriated.by
legislative~enactment.forthe payment of the salaries
of such persor+sas employees of the Adjutant General*s
Department,all subject of course to enabling legiala-
tion by the.TexasLegislature,audh employeea'mightbeg
eligible. However, these:are matters for the Legisla-
ture and the appropriateFederal authority.
.STJMMARY',
.Accountingclerks employed, supervised
and'aubjeotto discharge by the'Adjutant Gen-
eral of Texaa~,and whose rate of pay %s set
by him, under authority 'ofthe United States
Govermnent,'~hoaeaalarisa a'repaidto theme
by the United States Government,are not with-
in the provisionsnor eligible,for benefits
of the law creatiugthe %nployeea Retirement
System of Texas."
Yours very truly
A’l?‘l!ORNEY GENRlUL'OF TRXAS
NM0 : jmc Bea~MaDaniel
,Asaiatant
APPROVED:
izz 22
ATTORNRY GENERAL.