Case Information
*1 February 26, 1987 Mr. Marvin J. Titsman Opinion No. m-639 Executive Director Re: Whether members of the Texas
Texas Surplus Property Agency P. 0. Box 8120 Surplus Property Agency Board are San Antonio, Texas 78208 to participate the
Employees Retirement System Dear Mr. Titzman:
You ask whether a member of the Texas Surplus Property Agency Board is eligible to earn retirement credit with the Employees Retirement System under the provisions of section 23.502, Title llOB, V.T.C.S. Before we cau address your question, we must set out background Information about the Teachers Retirement System. Employees Retirement System. and the Texas Surplus Property Agency.
The Teachers Retirement System [TRS] was established in 1937. Acts 1937, ‘45th Leg., ch. 470, at 1178. At that time the membership the TRS consisted of all salaried’ teachers employed by a board or agency of au educational institution or organization supported by the state. Id. at 1178-81. In 1949 the membership of the TRS was expanded to inclurall salaried employees of educational organizations. Acts 1949, 51st Leg., ch. 139, at 244, 247-40. The statutes governing TRS are uow codified In Title 1lOB. sections 31.001 through 36.204, Unpaid members of administrative boards have never been included in the membership of the TRS.
The Employees Retirement System [ERS] was established in 1947. Its membership consisted ch. 352, at 697. any “regularly appointed officer or employee in a department State” who was employed on a basis or in a position normally requiring not less than 900 hours a year. Id. Members of other public retire- ment systems. including the TRS, ze expressly excluded from member- ship in the ERS. Id. at 697, 699.
In 1971 the ERS statute was amended to include a provision allowed unpaid administrative board members to claim vith the ERS for
[slervice as a Board Member of a statutory Texas
State department, agency. commission having statewide jurisdiction, the employees of which,
under requirements lav, are members of Employees Retirement System; provided such service was not in a full time salaried position p. 2890
Mr. Marvin J. Titsmsn - Page 2 UM-639)
but was subject to confirmation by the Senate of Texas. ch. 355, Il. at 1332. codified as art. 6228a,
Acts 1971. 62nd Leg., 64R.2. The amount the contribution to be made by an eligible board member was based ou the salary paid to the chief executive officer the relevant department during the time for which the board member claimed credit. Id.
In 1977 the legislature amended the ERS statutes so that adminls- trative board members were no longer permitted to establish service the RRS. Board members who were already contributing to credit with the ERS. however, were allowed to continue doing so. The 1977 legisla- tion provided
that any member of au administrative board of a statutory state department, agency. or commission as defined in Section 48.2 [the 1971 legislation set out above] this Act may, on or before December 31. 1977, become a contributing member of the Emnlovees Retirement System of Texas and only persona who establish retirement credit for board service during December. 1977, may continue establish credit for subsequent, continuous board service in the manner prescribed by that section and ourchase his previous service in accordance wlth’the terms of this Act. (Emphasis added). ch. 279, at 746. When the ERS statutes were the provision set out above,
recodified as part of Title 1lOB in 1981. was recodified in the following form:
(a) A member who established during December. 1977 t service credit for administrative board service performed during that month, say: (1) remain a contributing member retirement system accruing service credit
the employee class for continuous service on an board; and establish service for previous (2) on an eligible board.
(b) Contributions are computed on the basis of the highest salary paid during time for which credit is sought to an officer or employee the agency. cosmission. or department on whose board member serves.
V.T.C.S. Title 1lOB. Public Retirement Systems, P23.502. Because your question requires careful analysis of the 1977 amendment to the ERS
Hr. Marvin J. Titman statutes, we will refer to the original language of the 1977 amendment rather than the language as recodified at Title 1lOB. section 23.502. See Title 1lOB. §l.OOl(a) (recodification is not intended to make a substantive change in the law).
Your question a person who established involves board service during December 1977 as a member of the Veterans Affairs Conrmission and who in 1985, without a break in administrative serrrlce, became a board member of the Surplus Property Agency. You ask whether this person is eligible to remain a contributing member of the ERS under the 1977 amendment to the ERS statutes. Before we can address issue we must explain the unusual history of the Surplus Property Agency.
The Surplus Property Agency was created in December 1945 by Governor Coke Stevenson. Letter from Governor Coke Stevenson to Dr. J.W. Studebaker the Federal Security Agency (Dec. 18, 1945), letters of Gov. Coke Stevenson, Texas State Archives. Governor Stevenson created the agency in response to a request from the federal government that Texas name a state agency to receive surplus war property from the federal governxent. Id. Apparently the governor relied on a 1943 statute that gave the Kernor war emergency powers as his authority for creating such an agency.
ch. 142, at 223 (an act for the organization and coordination defense activities in Texas); see also Tex. S. Con. Res. 33, Acts 1949. 51st Leg., Tex. S. Con. Res. 33. at 1392 (stating governor set up the Surplus Property Agency under his war emergency powers).
In 1949 the legislature passed a joint resolution requesting governor to continue the Surplus Property Agency the benefit the state’s schools and institutions of higher education. Acts 1943, 48th Leg., ch. 142, at 223. The legislature adopted similar resolu- tions at every subsequent regular session of the legislature through 1969. Acts 1951, 52nd Leg., H.R. Con. Res. 66, at 1579 (broadening the beneficiaries the donable property program include public health institutions); Acts 1953, 53rd Leg., E.R. Con. Res. 110, at 1151; Acts 1955, 54th Leg., H.R. Con. Res. 101, at 1781; Acts 1957, 55th Leg., H.R. Con. Res. 46. at 1587: Acts 1959, 56th Leg., H.R. Con. Res. 81, at 1204; Acts 1961, 57th Leg., S.Con. Rer. 29, at 1202; Acts 1963. 58th Leg.. S. Con. Res. 12, at 1690; Acts 1965, 59th Leg., S. Con. Res. 7. at 1969; Acts 1967, 60th Leg., B.R. Con. Res. 97, at 2914; Acts 1969. 61st Leg., H.R. Con. Res. 24. at 3115. See Terre11 Wells Swimming Pool v. Rodriguez, 182 S.W.2d 824, 826 (Texniv. App. - San Antonio 1944. no writ) (a concurrent resolution does not have the effect of a statute).
In 1971 legislature enacted a statute “establishing” Surplus Property Agency. Acts 1971. 62nd Leg., ch. 32, at 59, codified at art. 6252-6b, V.T.C.S. A letter from the TRS informs us that before 1971 the Surplus Property Agency was treated as a part of the Texas Education Agency and that employees of the Surplus Property *4 (34-639) Mr. Marvin J. Titman the TRSi When the Surplus Property Agency
Agency were members of became a statutory state agency in 1971, Its employees continued to be covered by the TRS even though employees of the Surplus Property Agency no longer met the statutory requirements for membership in the TM. See V.T.C.S. Title 1lOB. $32.001 (membership of TRS). -
We think that legislature, by failing to act, has by now acquiesced iu the treatmaut of Surplus Property Agency employees as members of the TRS even though Surplus Property Agency employees do for membership in the TRS. not meet statutory requirements See Associated Indemnity Corp. v. Oil Well Drilling Co., 258 S.W.Zd 5% 529 (Tex. Civ. App. - Dallas 1953). aff’d, 264 S.W.2d 697 (Tex. 1954) (courts inclined to accept administrz agency’s interpretation statute if accepted over long period of time wlthout challenge). Your question. however, involves the status of a member of the Surplus Property Agency Board rather than au employee of the Surplus Property Agency. The TRS has properly told the board member in question it cannot accept a contribution from him because unpaid administrative board mambers do not belong to the TRS. The ERS has refused to accept a contribution from him and has stated that only members of adminis- trative boards whose employees are members of the ERS are to contribute to the ERS under section 23.502 of Title 1lOB. To deter- mine whether the ERS has properly refused to accept a contribution from the board member in question we must carefully examine the 1971 and 1977 amendments to the ERS statutes.
After December 1977 an administrative board member could continue to contribute to the ERS only if he was on the board of “a statutory state department, agency, commission” as defined in the 1971 amendment. To be a member of a board of a state agency as defined the 1971 amendment one ‘would have (1) serve as a member of a state agency; (2) serve in a position that was not a “statutory” (3) serve in a position required full-time salaried position; and (4) serve with a board “the employees confirmation by the senate; law, are members of the Employees of which, under requirements Retirement System.” See Acts 1971. 62nd Leg., ch. 355, at 1331.
A member of the Surplus Property Agency board meets first Two months before the effective three those four requirements. date the 1971 amendment to the ERS statutes the Surplus Property Agency became a “statutory State board.” See Acts 1971. 62nd Leg., ch. 32, at 59, eff. March 19, 1971 (establimng the Surplus Property ch. 355, at 1331. eff. May 25, 1971 ; Acts 1971. 62nd Leg., Agency) (allowing ERS service for administrative board service). Also, Surplus Property Agency Board members serve without pay and are subject to confirmation by the Senate. art. 6252-6b, 51; see also Attorney General Opinion H-1221 (1978) (construing article 6228a. 14a.2).
The fourth requirement poses a more difficult problem. To meet that requirement a board member must serve with a board “the employees of which, under requirements law. are members of the Employees *5 Mr. Mirzin J. Titsmau
Retirement System.” The employees of the Surplus Property Agency are not and have never been members of the ERS. An examination statutes and relevant legal authorities, however, would lead one to the conclusion that Surplus Property Agency employees are members of the ERS “under requirements law.”
The law provides that, except for members of the TRS (with other exceptions not applicable here), all state employees are members of the ERS. Title llOB, 022.003. By statute, the membership of the TRS consists of employees of boards and agencies state educational Nothing In the Surplus Property institutions and organizations. Agency’s statute makes it an educational organization. Thus, the law appears to require that employees of the Surplus Property Agency be members of the ERS. Furthermore, there Is no statute legal decision that would put someone ou notice employees Surplus Property Agency are members of the TRS rather than the ERS. See Falls County v. Mires, 218 S.W.2d 491, 494 (Tex. Civ. App. - Waco 1949, writ ref’d) (everyone is presumed to know statutes).. Therefore, because under law as written, employees the Surplus Property Agency should be members of the ERS. we think the board member you ask about comes within the scope of the 1977 amendment and that the ERS must continue to accept contributions from him.
Also, the 1977 amendment to the ERS statutes allows admlnistra- tive board mambers to make contributions after December 1977 only “subsequent, continuous board service.” ch. 279, at 746. The board member in question has served on two different boards, but since 1977 he has been a member at all times of some board. It has been suggested that “continuous service” should be read to mean continuous service on a particular board, rather than unbroken service on a board or boards. The phrase is indeed ambiguous; however, because legislature could have easily required “continuous on the same board,” we conclude that “subsequent’ continuous service” should be construed to mean unbroken administrative board service, whether the service is with one board or more’than one.
SUMMARY The Employees Retirement System must allow a person who since 1977 has served without interruption on the Veterans Affairs Cnmaission and the Surplus Property Agency Board to establish
with the ERS under Title llOB, section 23.502,
JIM MATTOX Attorney General of Texas *6 Mr. Marvfn J. Titman
JACK EIGETOWER
First Assistant Attorney General
MARYKELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General