Untitled Texas Attorney General Opinion ( 1947 )


Menu:
  •                                                         R-663
    ml
    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.
    

Document Info

Docket Number: V-336

Judges: Price Daniel

Filed Date: 7/2/1947

Precedential Status: Precedential

Modified Date: 2/18/2017