BOARD OF TRUSTEES, ETC. v. Farrar

HUGHES, Justice.

Believing S. B. 438¹ to be unconstitutional, we could not concur in the opinion of Chief Justice Archer; we do, however, adopt his statement of the case.

We have no difficulty in ascertaining the legislative .intent as expressed in the Bill, nor do we have any quarrel with the political or economic philosophy which may have prompted its enactment.' Our only pertinent conviction is that the Constitution of Texas forbade enactment of this law.

There are two separate and distinct constitutional provisions and two separate and distinct Retirement 'Systems involved here.

The first constitutional provision, in point of time, was for the establishment of a retirement system for persons “employed in public schools, colleges and universities, supported wholly or partly by the State”. ²

This amendment provided that “ * * * no person shall be eligible for a pension under this Amendment who has not taught twenty years in the State of Texas * * * ”; also,' that “the recipients of such retirement fund shall not be eligible for any other pension retirement funds or direct aid from the State of Texas,” unless that portion of such retirement fund contributed by the State is released to the State.

The other constitutional provision involved provides for the establishment of a “Retirement, Disability and Death Compensation Fund for the appointive officers and employees of the State”.³ It makes no reference to the Teachers Pension Amendment.

The State Employees Retirement Amendment does not require any specific length of service as a qualification for receipt of benefits but it does provide that “the recipients of benefits from said fund shall not be eligible for any other pension retirement funds or direct aid from the State of Texas,” unless the portion of such fund contributed by the State is released to the State.

. Section 4-E of the Enabling Act under this amendment⁴ provides that “No member shall be entitled to a retirement allowance until he has accumulated ten (10) or more years of creditable service in Texas.” This “creditable service” is, in part, made up from “prior service,” that is, services rendered prior to the establishment of the Retirement System. Sec. 4 of the Act. This “creditable service” is used in determining the eligibility for retirement and the amount of benefits to be paid under the Act. Section 5.

“Prior service” and “creditable service” are similarly treated in the Enabling Act to Teacher Retirement System Amendment to the Constitution.⁵

The purpose of S.B. 438 is to merge the Teacher Retirement System and the State Employees Retirement System in so far as “prior- service” and “creditable service” is concerned, i. e. “prior service” under either system would be “creditable service” under either system. Of note, however, is the fact that this Act requires at least twenty years of joint creditable service in order to be eligible for retirement. Sec. 4(a).

Section S of S.B. 438 provides: “The Board of Trustees of each of the Retirement Systems shall jointly establish rules and regulations to carry out the provisions of this Act; and the Comptroller is authorized, upon request by one System desiring to make its funds available through the other System, to transfer accrued funds and interest from one System to the other for eventual disbursement to the member concerned so as to effectuate the purposes of this Act.”

Bearing in mind the above constitutional and statutory provisions let us first discuss the case of Mr. Gaines. For the purpose of this discussion it will be assumed that Mr. Gaines has been employed by the University for thirteen years following seven years service as Assistant Attorney General, and that he is otherwise qualified for and is now demanding a pensioner’s rights under the Teacher Retirement Amendment to the Constitution and the Enabling Act passed thereunder.

The Constitution, which is the source of Mr.. Gaines’ rights and the provisions of which the Legislature cannot alter, answers this demand of Mr. Gaines by saying: You are not entitled to a pension because you have not “taught twenty years in the State ■of Texas,” and you have not “been employed in public schools, colleges and universities, supported wholly or partly by the State,” for a period of twenty years.

It is no answer for Mr. Gaines to say, as he does, that while he has served only thirteen years with the school system he has served seven years in the Attorney General’s Department, for the simple reason that the Constitution has conditioned the right to a pension under this provision upon twenty years service with the school system, and the Legislature was without power to say that twenty years service with the school system means thirteen years with the school system and seven years with the- Attorney General’s Department.

Mr. Gaines has never been a member of the. State Employees Retirement System because his service as such employee terminated before such system became effective. There are, therefore, no funds accumulated to his credit in such system to be. transferred to the Teacher Retirement System under Sec. 5 of S.B. 438. Since, however, retirement benefits are based, in part, upon prior service, the result of this situation here is that the Teacher Retirement Fund would be depleted to the extent that Mr. Gaines’ pension is based upon his service as a State' employee without any corresponding contribution from that System.

This, in our opinion, constitutes an encroachment. upon the Teacher Retirement Fund which is wholly unwarranted by the Constitution. As we understand the Constitution this Retirement Fund is for the benefit of teachers eligible under the Constitution, and statutes consistent therewith, to -receive it. Participation therein by all others is necessarily excluded by implication. It is our duty to protect this fund against all non-teacher claims.

Considering now the case of Mr. Farrar, it appears that he is and has been a member of the State Employees Retirement System since its inception in 1947, and that, in addition to creditable prior service allowed him as a State employee (other than as a teacher), he seeks credit for six years when he was a teacher in our public school system. He is entitled to this credit if the provisions of S.B. 438 authorizing it are constitutional.

Having already held a portion of this Bill unconstitutional, it probably follows that the entire Act is invalid under the rule that if the valid and invalid portions of an act are so interwoven that they cannot be separated so as to leave a complete act capable of being executed in accordance with the legislative intent. 9 Tex.Jur., p. 464. This is true even though the Act, as here contains a sever-ability clause. City of Houston v. State ex rel. City of West University Place, Tex.Civ.App., 171 S.W.2d 203, reversed on other grounds, 142 Tex. 190, 176 S.W.2d 928.

The provisions of this Act are so essentially reciprocal and mutual concerning the two retirement systems that we cannot say with any degree of certainty that the Legislature would have provided that State employees could add their service as teachers to their creditable service, unless teachers could add their service as State employees to their creditable service.

We do not rest our decision on this point, however, because we are of the opinion that Sec. 5 of S.B. 438 is prohibited by both constitutional amendments under consideration and that the invalidity of this provision fatally affects the entire Act.

Section 5, supra, provides for the transfer of funds from the Teacher Retirement Fund to the State Employees Retirement Fund, and vice versa, “for eventual disbursement to the member concerned so as to effectuate the purposes of this Act.”

Each of the constitutional provisions here involved provides that the “ * * * recipients of such retirement fund shall not be eligible for any other pension retirement funds * *

These words mean, if they mean anything, that teachers may not receive pensions payable out of the State Employees Retirement Fund (or any other fund), and that State employees may not receive pensions payable out of the Teacher Retirement Fund (or any other fund).

Yet, Sec. 5 of S.B. 438 expressly provides to the contrary. It states in plain and simple language that funds belonging to the Teacher Retirement System may be transferred to the State Employees Retirement System for eventual disbursement to the member concerned,” who would be a State employee. This is direct statutory authority for a State Employee to be eligible for and to receive benefits from two Retirement System Funds. This the State Employees Retirement Constitutional Amendment prohibits.

Similarly, said Sec. 5 provides for a teacher to be eligible for and to receive benefits from two Retirement System Funds, which is prohibited by the Teacher Retirement System Constitutional Amendment.

Section 5, supra, is therefore unconstitutional. Without this section the purpose of the Act cannot be fulfilled. The funds to pay the increased and accelerated pensions would not be available. The entire Act is, therefore, void.

We consider timely and appropriate the decision and language of the Supreme Court in City of Fort Worth v. Howerton, Tex.Sup., 236 S.W.2d 615. The court there held that a pension plan adopted and put in force by the City of Fort Worth for its police officers under authority of a constitutional amendment could not be altered by the Legislature without the consent of the City, the court saying:

“The system created under Article 6243Í undertakes to affect the rights and obligations accrued under the system adopted by the City of Fort Worth under a constitutional provision. Clearly this creates a conflict, and the rights accrued under the constitutional provision must prevail. The provisions of the Constitution were adopted by the people, while statutes are enacted by the Legislature; and the Legislature may enact, repeal, or amend statutes, but it does not have the power to repeal or amend the provisions of the Constitution. That power rests exclusively with the people.

“It is the general policy of the law, where rights have been fixed under a constitutional provision, that the Legislature is without power to destroy or impair such rights. It is also the general rule that the Legislature does not have power to enact any law contrary to a provision of the Constitution, and if any law, or part thereof, undertakes to nullify the protection furnished by the Constitution, such law or part thereof, that conflicts with the Constitution is void. * * *

“We hold that certain rights, duties, and obligations have been created by the City of Fort Worth under the pension system adopted under the provisions of Section 51-e of Article 3 of the Constitution and involved here, and the Legislature is not authorized to change the plan, as is undertaken by Article 6243i, without the consent of the City of Fort Worth, and that that part of the law which undertakes to do so is inoperative as against the City of Fort Worth.”

Our decision here is based upon the principles stated so clearly by Judge Sharp in the Howerton case.

The judgment of the trial court is reversed and judgment is here rendered that appellees take nothing by their suit.

Reversed and rendered.

ARCHER, C. J., dissents.

1 . Acts 51st Leg.Reg.Sess.1949, ch. 454, p. 835, Art. 6228c, V.A.C.S..

2 . Sec. 48a, Art. Ill, Tex.Constitution, Amendment adopted Nov. 3, 1936.

3 . Sec. 62(a), Art. XVI, Tex.Constitution, Amendment adopted Nov. 5, 1946.

4 . Art. 6228a, V.A.C.S.

5 . Art. 2922-1, Y.A.O.S.