Joas L. El&IA
..wo- 0-u
August 15, 1974
The Honorable Dan Kubiak Opinion No. H- 371
House of Representatives
Capitol Station Re: Whether former participant
Austin. Texas 78767 in Texas Teacher Retirement
System, who declined at the time
to exercise option to participate
.in Optional Retirement System,
may upon return to teaching after
educational absence elect to
participate in the Optional System.
Dear Mr. Kubiak:
The question is whether under certain circumstances a teacher who
returns to teaching in Texas has an option to participate in the Optional
Retirement System or is limited to participation in the Texas Teacher
Retirement System.
The facts, as they have been presented, are that the teacher in
question was a faculty member at a state supported institution of higher
education during the school year from September.1971. through May, 1972.
The Optional Retirement System had become available to faculty members
of this institution on Sept. 1, 1971 and we understand the teacher in question
was advised of her option to participate in the System. She refrained from
exercising this option, electing to continue membership in the Texas
Teacher Retirement System. We understand that because the teacher lacked
an advanced degree her employment terminated at the end of the 1971-1972
school year and she withdrew all contributions she had made into the Teacher
Retirement System. Thereafter she completed her advanced degree work,
and in September,1973, she was again employed as a teacher in the same
Texas state-supported institution of higher education in Texas.
.
p. 1743
. .
. .
The Honorable Dan Kubiak page 2 (H- 371)
The controlling statute is Section 51.355, Texas Education Code
(formerly Art. 2922-11, Sec. 5. V. T. C.S.) which provides as follows:
A faculty member who becomes eligible to participate
in the optional retirement program and who is a member
of the retirement system is hereby extended the option
of continuing his membership in the retirement system
or participating in the optional retirement program as
hereinafter set forth. A faculty member who is eligible
to participate in the optional retirement program on
the date the optional retirement program becomes aail-
able at the institution of higher education at which he
is employed, no later than the 1st day of August of the
calendar year following the date on which the optional
retirement program becomes available at the institution
of higher education at which he is employed, shall elect
to participate or not to participate in the optional
retirement program. A faculty member who becomes eli-
gible to participate in~the optional retirement program
subsequent to the date on which the optional retirement pro-
gram becomes available at the institution of higher education
at which he is employed shall make such election within
90 days following the date on which he becomes eligible
to participate in the optional retirement program. A
faculty member exercising the option to participate in
the optional retirement program shall not thereafter be .
eligible for membership in the retirement system unless
he ceases to be employed by the Texas Public School
System other than in an institution of higher education.
A faculty member not exercising the option to participate
in the optional retirement program shall be deemed to have
chosen to continue membership in the retirement system
in lieu of exercising the option to participate in the optional
retirement program. (emphasis added.)
p. 1744
. l
. .
The Honorable Dan Kubiak yge 3 (H-371)
We presume that the teacher in question during her original employ-
ment and at the present time has qualified as a “faculty member” for
purposes of Section 51.355, Texas Education Code. She was eligible to
participate in the Optional Retirement System during her original tenure
in 1971-1972 if she exercised her option on or before August first, 1972.
Clearly the explicit language of Section 51.355 provides for only one elec-
tion, not a series of elections, regardless of the circumstances.
The Optional Retirement Act has been amended several times since
the issuance of Opinion No. M-1027 (1971) construing the statute, (then
Article 2922-R) as permitting an election only once. (In addition to the
repeal and codification in 1971 referred to previously herein, see Acts
1973, 63rd Leg., p. 1368, ch. 521). The Legislature could have provided
for a series of elections but has not done SO.
.
It is also noteworthy that the Legislature has provided for re-instating
membership and service credits in the Teacher Retirement System after an
absence (see particularly Sections 3.25 and 3.26, Texas Education Code) and
even for retaining membership in either of the retirment systems during
educational leaves, (see Sets. 51.101 through 51.108, Texas Education Code);
These provisions demonstrate legislative awareness in this area. Therefore
the absence of provisions for more than one election forces the conclusion
that only one opportunity to make an election between retirement systems
was intended and that such an election, once made during the prescribed
period, is considered binding on the individual teacher.
This construction of the statutory scheme draws further support
from the provisions of Section 51.355 dealing with the converse situation
where the faculty member initially elects to participate in the Optional
Retirement System. The statute provides that I’. . . A faculty member
exercising the option to participate in the optional retirement program
shall not thereafter be eligible for membership in the retirement system
unless he ceases to be employed by an institution of higher education and
becomes employed by the Texas Public School System other than in an
institution of higher education. ” Had the teacher in question opted in
1971-1972 to participate in the Optional Retirement System it would appear
p. 1745
’ .
The Honorable Dan Kubiak page4 (H-371) . ..
that she would be bound by that election upon her return to teaching. By
the explicit language of Section 51. 355 she would have been ineligible for
membership in the Teacher Retirement System and no second election
would have been available. Logically her election not to participate and
thereby to remain in the Teacher Retirement System would be judicially
construed as binding on her. In our opinion she would not be held entitled
to a second election.
SUMMARY
Section 51.355, Texas Education Code, affords
an opportunity for a faculty member to elect parti-
cipation in the Optional Retirement System and a
faculty member who fails to exercise the option
when first available does not have a right to a second
opportunity to exercise that option upon returning to
teaching in Texas after terminating previous employ-
ment and leaving the state to secure an advanced
degree.
Very truly yours,
/JL!kb
JOHN L. HILL
Attorney General of Texas
irst Assistant
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1746