Untitled Texas Attorney General Opinion

Honorable Robert S. Calvert
Comptroller of Public Accounts
Austin, Taxas
opinion No. S-120
Re: Proper appropriation year
against which refund of
Judfciarg Retirement Sys-
tem contributions should
Dear Mr. Calvert: be charged.
Your request for an opinion reads as follows:
'ITheLegislative Act creating the Judl-
ciarg Retirement System provides for with-
drawals for contributions made by a member to
the system after such member has severed his
connection with the system. The law does not
fix any specific time for the ex-member to
withdraw his contributions.
"The question now before us is the proper
appropriation year to charge with the member's
contribution when he files claim for withdrawal.
For example, a member severs his membership in
August, 1951, but does not file his claim~to
withdraw his contributions until December, 1953.
Is his claim payable out of the appropriations
available for that purpose in the year 1951 or
out of the appropriations available for that
purpose for the year 19531 Please advise in
the premises.
"Would the same rule apply to an ex-member
withdrawing his contribution from the Teacher
Retirement System and also to an ex-member with-
drawing his contribution from the Employees Re-
tirement System?"
Honorable Robert S. Calvert, page 2 (S-120)
Section 6 of the Judiciary Retirement Act (Article
6228b, Vernon's Civil Statutes) provides:
"Should any Judge of any Court of this
State die, resign or cease to be a Judge of a
Court of this State, except In the event of his
,appointmeat or election to a Court of higher
rank, prior to the time he shall have been re-
tired as provided under the provisions of this
Act, the amount of his accumulated contributions
shall be paid to his beneficiary nominated by
written designation duly filed with the Chief
Justice of the Supreme Court, or to him, as the
case may be. . . ."
Article 4357, V. C. S., reads in part:
"NO warrant shall be prapared except on
presentation to the warrant clerk of a properly
audited claim, verified by affidavit to its
correctness, the propar auditing of which claim
shall be evidenced ~by the initials written
thereon by the person auditing the same; and
such clati so verified and audited shall be
sufficient and the only authority for the prep-
aration of a warrant or warrants. No claim
shall be paid from appropriations unless pre-
sented to the Comptroller for payment within
two (2) years from the close of the fiscal year
for which such appropriations were made, but
any claim not presented for payment within such
period may be presented to tha Legislature as
other claims for whLch no appropriations are
available. . . ."
We think it Is clear that a claim for refund arises
at the time the member ceases to be a judge. The warrant
cannot be issued until the formalities of presentment of the
claim have been complied with, but the clalmant*s right to
apply for the refund accrues as of the date the judgeship
ceases.
!l?he
Judiciary Retirement Act does not specify any
time limit within which refund must be applied for, and a
claimant does not lose his right to the refund by delay in
Honorable Robert S. Calvert, page 3 (s-120)
applying for it. There would be nothing to prevent the
Legislature from providing for payment of claims which were
filed during the appropriation period without regard to the
dates of their accrual. On the other hand, the appropriation
could be made to pay claims which accrued during the period.
In the latter case, the claFmant would have to present his
claim within two years from the close of the fiscal year in
which it accrued in order for it to be paid out of the regu-
lar appropriation. If not presented within that time, the
claim would have to be paid by special appropriation, by
virtue of Article 4357. The fact that Article 6228b does
not limit the time within which claims must be filed does not
necessarily mean that they can be paid from the regular ap-
propriation at any time they are filed. Article 4357 pro-
vides the mode for payment if the claim Is not presented
within two years from the close of the fiscal year for which
the regular appropriation for its payment is made.
The controlling question, then, is whether the ap-
propriations were intended to cover claims for refunds which
were filed within each particular appropriation period or
claims which arose within that period.
Section 2 of Article I of the current appropriation
act (Ch. 81, Acts 53rd Leg., 1953, at p. 139) appropriates
$5,000.00 for each year of the biennium "to refund accumulated
contributions as provided in Section 6" of Article 6228b.
Similar appropriations were made for the two preceding bien-
niums, except that the appropriation In each instance was for
"such sum or sums of money as may be necessary" instead of
being limited to a stated amount. Sec. 2 of Art. I, Ch. 499,
Acts 52nd Lkg., 1951, at p.1239; Sec. 4 of Ch. 585, Acts 5lst
kg. f 1949, at p. 1169. These acts do not expressly state
whether the appropriations are for payment of claims which ac-
crued or which were presented for payment within the period
of the appropriation. We must therefore arrive at the legls-
lative intent on the basis of other considerations.
Ordinarily, an appropriation is for payment of
claims which arise during the period of the appropriation.
This is necessarily true where the appropriation is a limita-
tion on the amount of the claims which can be incurred during
the period. While any limitation on the amount appropriated
for repaying contributions is not a limitation on the amount
of the refund claims which can arise during the appropriation
Honorable Robert S. Calvert, page 4 (s-120)
period, we are of the opinion, when the provisions of the ap-
propriation acts are construed together with the provisions
of Article 6228b, that the legislative intent was to appro-
priate an amount to cover claims which arose during each
period.
In the first place, we think that in the absence
of evidence to the contrclryit is more reasonable to assume
that the Legislature intended to follow the ssme practice as
that established for appropriations generally. In the next
place, it is noteworthy that the last appropriation act
stated a specific amount which could not be exceeded for
payment of these claims. It is more reasonable to assume
that the Legislature arrived at this amount by estimating
the claims which would arise during each year than by estlmat-
ing the amount of claims which would be presented for payment
under a system which would allow payment at any time the
claim happened to be filed. In either event, the amount
would be only an estimate and might not conform to the actual
total of the claims, but there would be a greater likelihood
for disrupting the orderly payment of the claims if their
filing could be delayed until later appropriation periods.
If a large number of claimants happened to wait until a later
year to present their claims, it would dissipate the appro-
priation more rapidly than was anticipated and might inter-
fere with the payment of claims which were filed promptly.
We are unwilling to attribute such an intent to the Legisla-
ture in the absence of clearer evidence that this was the
intent.
It is therefore our opinion that the appropriations
for the fiscal years of the 1953-1955 biennium are for pay-
ment of claims which arise during these periods. We are also
of the opinion that the prior appropriations were also for
payment of claims which arose during those respective periods.
We do not believe the 53rd Legislature had any Intention of
changing the basis of the appropriation and thereby creating
a hiatus In the payment of these claims. The 1953 approprla-
tion act is a legislative Interpretation of Article 6228b
and the prior appropriation acts and is entitled to weight
in arriving at the meaning of the prior acts. Stanford v.
Butler, 142 Tex. 692, 181 S.W.2d 269 (1944).
You have asked whether this same rule applies to
payment of contributions which are withdrawn from the Teacher
Retirement System and the State Bxployees Retirement System.
, ‘.’
Honorable Robert S. Calvert, page 5 (S-120)
As we have stated, the question is one of legislative intent,
which must be derived from each particular set of statutory
provisions . These two acts (Art. 2922-1, Sec. 5, Subd. 6;
Art. 6228a, Sec. 5, Subd. F) give the claimant a seven-year
period within which to make application for refund, and at
the end of that period the amount must be refunded even
though the claimant has not applied therefor. These prov l-
sions evidence a legislative intent that the claimant may re-
ceive payment out of the regular appropriation at any time
within this period. If the appropriation from which payment
was to be made was determinable by the date on which the
claim arose, the refund at the end of the seven-year period
could be accomplished only by presentment of the claim to
the Legislature in accordance with Article 4357. However,
the provlslon for mandatory refund at the end of this period
shows that the refund is payable out of the re ular appro-
priation and the limitation period in Article &357 does not
begin to run until the seven-year period has elapsed.
SUMMARY
A refund of accumulated contributions under
the Judiciary Retirement System is payable out of
the appropriatIon for the period in which the
claim arises, rather than for the period in which
the claim is presented for payment. However, re-
fund of accumulated contributions under the Teacher
Retirement System or the State Employees Retirement
System should be paid out of the appropriation for
the period In which the application for refund Is
filed, if filed within seven years.
APPROVED: Yours very truly,
John Atchison JOHN BEN SREPPERD
Rev Iewer Attorney General
Robert S. Trotti
First Assistant BY xl-
Mar H. Wall
nEwi,
John Ben Sheppard Assistant
Attorney General