Untitled Texas Attorney General Opinion ( 1948 )

45
OFFICE OF
THEATTORNEYGENERAL
Avsrm, TEXAS
pRICE DANIEL
*moRNEYGENERAL January 22, 1948
Mr. Gordon Ii.Lloyd, opinion No. v-480
Executive Secretary,
Employees Retirement System, Re: Eligibility of employ-
Aus tin, Texes ees of the State Bar
of Texas to be mem-
bers of the Rmplogees
Retirement System.
Dear Mr. Lloyd:
Your recent request for an opinion of this de-
partment Is as follows:
"Please advise if, in your opinion, the
employees of the State Bar of Texas are eli-
gible for membership with the Rmployees Re-
tirement System."
Section 62(a) of Article 16 of the State Con-
stitution provides, In part, that:
"The Legislature shall have the right
to levy taxes to provide a Retirement, Dis-
ebilltr and Death Comoensatlon Fund for the
appoinkve officers and employees of the
State: . . ,.."(Emphasis added throughout)
The Act passed by the 50th Leglsleture to car-
ry Section 62(a) of Article 16 of the Constitution into
effect is Article 62288~of Vernon's Civil Statutes. Per-
tinent provisions of the Act are as follows:'
"Section 1 . . .
"B. 'Department' shall mean any
department, commission, institution, or -
a-
gency of the State Government.
"C. 'Rmployee' shall mean any
regularly appointed officer or employee
in a department of the State who is em-
ployed on a basis or in a position normal-
'Ig requiring not less than nine hundred
46
Mr. Gordon H. Lloyd,,page 2 (8-480)
(900) hours per year, but shall'xiotin-
clude members of the State Leglsxature or
any.ticumbent of an office normally filled
by vote of the people; nor persons on piece-
work basis; nor operators of equipment or
drivers of teams whose wages are included
in rental value paid the owners of said
equipment or team; nor any person who is
covered by the Teacher Retirement System
of the State of Texas or any retirement
system supported with State funds other
than the Texas Employees Retirement Sys-
tem.
"D. 'Employer' shall mean the
State of Texas.
"Sec. 3. The membership of said Re-
tirement System shall be composed as fol-
lows:
"A. All persons who are employ-
ees on the date as of which the Retirement
System is established shall become members
as of that date as a condition of their em-
nt unless within a period of ninety
pi:Eays after September 1, 1947, any such
employee shall file with the State Board of.
Trustees on a form prescrlbed$y such Board,
a notice of his election not to be covered
in the membership of the System and a duly
executed waiver of all present and pros-
pective,beneflts~whi.chwould otherwise inure
to him on account of his participation in
the Retirement System. The following per-
sons shall, however, not be eligible for
participation in the Retirement System:
“1. Members of the State Legislature
or any incumbent of an office normally fill-
ed by-a vote of the people, nor any person
who is covered by the Teachers Retirement
System or any retirement system supported
with Stat&funds othe5 than the Texas Rm-
ployees Retirement System.
'2. Persons employed'on a piecework
basis or operators of equipment or drivers
of teams whose wages are included in the
Mr. Cordon R. Lloyd, page 3 .(V-480)
rental rate paid the owners of said equip- ~:,:
ment,or team.
1 "3 . Duployees who'are employed less
than nine hundred (900) hour8 per year.
"B. Any person who beoone.8an
employee on or after the date of establish-
ment oftthe System she.11,upon the comple-
tion of nine (9) months of,continuous ser-
vice uninterrupted by a break of more than
one month, becomesa member of the System
as a condition of employment, provided said
person 18 less than Sixty (60) years of a e
at the time of completion of said nine (9'f
months of service. . . .'
_
We quote the.followlng from the State Bar Act,
.Article ;320a-1,Vernon'8 Civil Statutes:
'Sec. 2. There is hereby created the
StatesBpr, which isherebg~ Constituted an .~
administrative agency of.the Judicial De-
rtment of.the State, with power to con-
its own affairs and
which may sue a~ndbe sued and have such
other powers as are reasonebly necessary
to carry out the purposes of.this Act.
:"Se&. 4;, Within six (6) months from.
the,effectlve date of.thls Act, and from
time to timesthereafter, as to the Courts
may,seem proper, the Supreme Court of Texes
shall prepare and.propose rules and regula- '
tions v . .,for the conduct of the State
Bar .~. . .
"The-Supreme ~Court is further empow-
ered.and.it shall be its ,duty to rescribe
fees not exceeding Four Dollars ($ 4) per
annum per.per8on't.obe paid to the Clerk
of the Supreme Court to.be held by him and
expended by the Courtor under its dlrec-
tion for the purpose of the administration
of this Act . . .'
The State Bar is'an agency of the Judicial De-
eartment of the State Government. It is, therefore, a
department.!within the terms of the Act creating the
48 Mr. Cordon II.Lloyd, page 4 (v-480)
Employment Retirement.System of Texas. The employees of
the State Bar, then, are "employees" of the State under
the Act unless specifically excluded Under the deflni-
tion of "employee". We find nothing in that definition
keeping them, as a class, from being "employees". We
are of the opinion that employees of the State Bar are
eligible for membership with the Bnployees Retirement
System if they come withln the provision8 of~Section 3,
Subsection A of the Act, supra, and are not specifical-
ly excluded thereby. They are not specifIcalLy exclud-
ed. Further, we are of the opinion that all employees
of'~theState before the date of the establishment of the
System (September-l, 1947), unless excluded from member-
sh$p by Seation 3, Subseotion A, were not only eligible
for membership but were automaticelly taken into the
membership of the System UnleSS~Within'a'period of nine-
ty (90) days 8fter September 1; 194.7,such employees fil-
ed with the State Board of Trustees notices of their
election not to be covered in the membership and waivers
of all benefits which would otherwise inure to them by
participation in the Retirement System. With reference
to persons becoming State Employees on or after the date
of the establishment of'the System, see Section 3, Sub-
seotion B, Article 6228a,,Vernon's Civil Statutes, su-
pra.
Although the funds from which employees of the
State Bar are paid are State funds, they are not adminis-
tered through the State Treasury and the State Comptrol-
ler's office. In 8UCh an instance, the k@SlatuFe ha8
made no provision, within the teems of the Retirement
Act, for contributions of the State in order to mstch
contributions of such employees. It i8 OUP OpiIIiOnthat
the lack of such a provision at the present time does
not exclude an otherwise qualified employee from member-
ship in the System. Ro person who has met the qualifi-
cations of an "employee" under the terms of the Retire-
ment Act is precluded from memberstip in the Retirement
System because the Legislature ha8 not yet specified the
mechanics to be used In making all of the contributions
of the State in matching the coxlbutions of employees.
In reaching this conclusion we reaffirm the conclusion
reached in Opinion V-336, but modify the language used
therein so as to conform to the view expressed jn this
paragraph.
SliMMARY
The State Bar of Texas, by the terms
49
Mr. Gordon H. Lloyd, page 5 (v-480)
of Section 2, Article 3208-l,,Vernon's
Civil Statutes, is sn "agency of the'Judi-
cial Department of the State:, and is,
therefore, an "agency of the Sta.teGovern-
ment" within the provisions of Article
6228a, Vernon's Civil Statutes. Its ,em-
ployees, if otherwise qualified, are eli-
gible for membership in the Employees Re-
tirement System.
Yours very truly
ATTORNEY GERERAL OF TEXAS
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ATTORNRYGERRRAL