.
LAW LJBRARY
Mr. Frank H. Jaokson Opinion No.M-647
Executive Secretary
Teacher Retirement System Re: Several questions relative
of Texas to rights and status of
Lowich Building "faculty member" and former
Austin, TCXPG 78701 "faculty mcmbez" under
the optional Retirement
Program (Art. 2922-U.
V.C.S.) and the Teacher
'RetirementLaw.
Dear Mr. Jackson:
In your letter'requestingan opinion on the above
captioned questions, you set out the followingquoted information
and questions.
"During the Regular Session of the 60th Texas
Legislature, 1967, S.B. 292, providing an
opticxm1 r(e+itementProgram sor Cullcye a1d unlvervity
faculty members, was enacted. Section.2(d) of S.B.
292 defines the term 'facultymember.' As a result
of this legislation,many faculty members in the
institutionsof higher education in Texas elected
to participate in the Optional RetirementProgram
in lieu of -Teacher Beklramont. Recently several
persons who had previously elected the Optional
Retirement.Proqramhave changed to employment in a
new position still in an institution of higher
~ducirtlsn.-buC.whi.zh tongor b= oenoid~rod
am L-LO' ai)
a 'facultymember. I As a result of these changes of
positions, we present the followingquestions for
your consideration:
"1. Is a 'personwho was employed in a state-
supported institutionof higher.education as a
faculty.memberin Texas and elected to become a
member of the Optional RetirementProgram under
thq.provisionsof Chapter 729 (S.B. 2921, 60th
Texas Legislature,Regular Session, 1967 (2922-li,V.C.S.),
Mr. Frank M. Jackson, page Z(M-647)
and who is later employed in.a state-supportedinstitution
of higher-educationin a position classified as other than
'facultymember,' again required to become a member of
the Teacher RetirementSystem as provided under Section
1.03 of the Teacher RetirementLaw?
“2. If your answer to question NO. 1 is in.the
affirmative,would said person, after five years of re-
employment in the new position, be eligible to reinstate
any account previouslywithdrawn from the Teacher Retire-
ment System under the provisionsof Section 2.05 of the
Teacher Retirement Law?
”3 . If your answer to questionNo. .l is in the
affirmative, is said person eligible to receive credit
with the Teacher RetirementSystem for any service during
which time he was a member of the Optional Retirement
Program?
“4. If your'answer.toquestion No. 1 is in the
negative; is .said.personstill eligible to participate
in the Optional RetirementProgram even though he.is
no longer-elfgible.to.be.considered as a 'faculty
member' as defined in Chapter 729 (S.B. 2921, 60th
Texas Legislature,Regular Session, 1967?"
The Teacher RetirementSystem of Texaeis governed
by the following provision of the Education Code:
Article 292271.02,Vemon's.Civil Statutes, reads, in
part as follows:
I((a) In this Act, unless the context requires
a different definition:
"(1) 'RetirementSystem' means the Teacher
Retirement system of Texas as defined in Section
1.01 of this Act:
“(2) 'public school' means any educational
institution or organiaationin thio otatc which undct
the laws of Texas.is entitled to be supported wholly
or partly by state, county, school district, or
other municipal corporationfunds:
"(3) 'teacher' means any person employed to render
teaching service on a full-time,regular salary basis
-3094-
Mr. Frank M. Jackson, page 3 (M-64'1)
.. . . by the-board of regents of any college or
university, or by any other lega.ly constrtuted board
or agency of any public school;
“(4) 'teachingservice'means service rendered
in organizedpublic education in this state in
professionalor business administration,or in
supervision or instruction;
"(5) 'auxiliaryemployee'means a person other than
a 'teacher'employed..onafull-time,reqular salary
basis by the boards or agencies listed in Subsection
7a) ,(3) of this section;
II. . .
"(8) ‘member’ means any teacher or auxiliary employee
included in the membershipof,the Retirement System
in accordancewith this Act;
"(10) ‘servite’ means service as a teacher or
auxiliary'employeein the public schools of this state,
or in one of the other department,institutions,or
agencies of the public school system of Texas,
,I...'I(Emphasisadded.)
Article 2922-1.03,Vernon's Civil Statutes, reads as
follows:
"(4 All persons-who on the effective date of
this act were members of the Teacher Retirement System
of Texasshall continue as.memberssubject.to the
provisions of this Act except as provided in Chapter
729 (SiB. 2921, 60th Texas Legislature,Regular
Session, 1967.
"(b) Every person who may be employed as a teacher
y e
or auxiliar 0 ee in an
branch or unit of the public school system of this
state shall become a member of the Retirement System
as a condition of his employment. This subsection shall
not apply to require membershipof any person who
or. Frank M. Jackson, page 4 (M-647)
"(l)'has heretofore,pursuant to authoriCy of
former laws,-executed and filed a waiver of member-
ship in the"RetitementSystem; however, any such
person may,'electto become a member at the
beginning of any school year, but shall not be
entitled to 'credit for prior service unless payments
for the waived service are made as provided in Section
2.05 of this'Act; or
"(2) was or may be for the first time-employed
as a teacheror'auxiliary employee, and who at such time
was or may be.more than 60 years of age; however, such
person may'efect to.become a member of the Retirement
System as-.of'theeffective date of employmentby
notifying his employer and the State Board of Trustees
within 90 days from the effective'dateof employment;
Ol:
"(3Pelects to.partictpatein the retirementprogram
provided b &re
Cha ter ,
Regular Session, 1967,,Article 2922-li)" (Emphasisadded.)
Article 2922-1.04,Vernon's Civil Statutes, reads, in
part as 'follows:
"(a) ....
"(d) If the.membershipof any member shall
terminate; except by death or retirement,all his
creditable service theretofore allowed or earned
shall be forfeited.
"(a) Should a person whose membershiphas
terminated again become a member, he shall enter
%he Retirement System upon the same terms as a person
entering service for tho first timc.on that date and
shall not.be entitled to credit for.prlorservice or
other terminated service, unless it is reinstated upon
the terms and conditions set 6ut in Section 2.05 of this
Act. " (Emphasisadded.)
Article 2922-2.05,Vernon's Civil Statutes, reads as
follows:
'*(a)Any teacher or auxiliaryemployee who has
executed a waiver of membership in the Retirement
System shall have the privilege of electing to receive
-3096-
Ur. Frank M. Jackson, page 5 (M-647)
full membership service credit, provided such
toaohar or auxUiary employee after~becominga.member
of the Retirement System shall deposit all back
deposits, assessmentsand dues which he would have
paid or deposited had.he been a member of the
RstLreraent~~System during each ~of the years jae actually
taught or was employed as an auxiliary emp1oyee.i.nthe
public schools-followingthe date on which he first
became eligible for membershipin the.Retirement
System, together with interest from the.date each.
amount was-payable at the rate of five percent per annum.
One-half of the interest shall be credited to the state
contributionaccount.
"(by)Any person who terminatesor'has terminated
membership in. the RetirementSystem by.withdrawalof
deposits or by.absence from service shall..have
the.
privilege.of.reinstating such terminatedmembership
by renderlng.servicefor five subsequent consecutive
creditable years and depositingthe.amountwithdrawn
plus membership.feesfor the years during which member-
ship was'terminatedplus a reinstatementfee of two and
one-half,percentper annum from the date of withdrawal to
date of redeposit. The reinstatementfee shall be
cxedited to the-state contributionaccount.
"(cl The amounts to be deposited shall be
determined fn each case by the State Roard of Trustees
and no merson.shallbe grant.oAretitiomont upon ouah
service credits until the amount so determined is paid
iis.full."
Under the provisionsof Article 2922:1.03(b)
every person who is employed as a teacher or auxiliary employee,
as defined in ArtioLc 2922.1.02of any institutionof
higher education.isrequired to be metier of the "Teache.r
Retirement System of Texas" unless they are exempt under the
exemptions set out in.subsection(l), {2), or (3) of Article
2922-1.03 (b). Subsection (3) of Article 2922-1.03(b)states
that membership in the,TeacherRetirementProgram is not required
of these vho elect to participatein the Optional Retirement
Program provided by Senate Bill 292, Chapter 729, 60th Texas
Legislature, 1967 and codified as Article 2922-li which
reads, in part, as follows:
0....
“Sec. 2. As used in this act, unless the context
otherwise requires:
-3097-
W. Frank M. Jackson, Page 5 (M-547)
II
...
* (b) gRetirement System' means the Teaoher
Retirement System of Texas as defined under the
provisions of chipter 470, Acts, Regular Session,.+th
Legislature U37), ai3amen&a.
O(f) .*OotionalRetirement Program’ amum the
optional retirement praqram created by this Act to
provide fixed of varisble retirement annuities, including
retirement unit annuity Certfficat$s of-tarticipation
P a r la a r l+y
a r a ntb sr s.
"(ak There is hereby estahlfshed an Optional Retirement .
Program. Partkipat$osi In the Optional ffe%iEUQ8BtProgram
is in lieu-of active-metiershipin the Retirement System.
The Governing-Boards for all institutions of higher education
shall make available to all faculty members in their
component institritions,agenoiea and units the Optional
Retirement Program vhioh shall provide for the vesting.
of benefit8 after one year,of;participation.
"(b) All faculty members are'eligible to participate
in the Opt'ZonaLPetirement Program, subject to such
rules as may be presoribed by the Governing Board
of.the institution of.hfqher education at which they
are employed.
*Sec. '4. .,..
-3098~.
Mr. Frank M. Jackson, page 7 (H-647)
“Sec. 5. A faculty member (includingone so
employed on the effectivedate of this Act) who be-
comes eligible to participatein the Optional Re-
tirement Program an6 who is a member of the Retire-
ment System is hereby extended the option of con-
tinuing his membershipin the RetirementSystem
or participatingin the Optional Retirement Ptoaram
l . . Afaculty member exercisingthe option to
Participate in the Optional RetirementProgram as
aforesaid shall not thereafterbe eligible for
membership in the RetirementSystem except as a
limited member Bursuant to Se&ion I hereof
unless such member ceases to be employed by an
institutionof hzgher educationand becomes,employed
by the Texas Public School System other.than in an
institutionof higher education. A faculty member
not exercisingthe option to participatein the
Optional RetirementProgram as aforesaid shall be
seemed to have chosen to continue membership in the
RetirementSystem in lieu of exercisingsuch option
to participate in the OptionaT-Ret-frement Program.
as amended (Article~2922-1,Vernon's Texas Civil
Statutes), upon applicationin writing as prescribed
by the State Board of Trustees and the applicable
amounts shall be paid within twelve (121 months from
date such applicationis.received. Upon such with-
drawal of funds, the facultymcmbcr shall thereby'
forfeit and relinquishall accrued rights as a
member
-- of the."
_.- (Emphasisadded.1
In construingany statute, the first rule to be observed
is that if the words of the statute are plain and definite, it must
be interpretedin accordancewith the maxim, "ThenLaw is Thus
-3099-
Mr. Frank M. Jackson, page 8 (m-647)
Written, a mcuning ticaLQ 1LLrralinterpretation must be giveri
to the words of the statute,unless .todo so will lead away
from the.iatent and puzpose.of.theAct ns a uhole.and~produce
an .absua. result.
Another rule of equal importanceis that a statute
must be interpretedso as.to make operativein a practical way the
purpose of the Legislature, aa so as to secure to the class or
classes of persons in whose behalf the statutewas enacted the
benefits intended to be conferred. Also when statutes are in
pui matoria and relating to the same subject, they are to be taken
together and so construed, in referenceto each other so that if
practicable, effect may be given to all provisionsof the statutes
being construed. State v.'Dyer,145 Tex: 586, 200 s.w.2d 813,
(1947).
The legislaturehas clearly shown by its enactment of .
Art&es 2922-1.01, 1.02, 1.03, 1.04, 2.05 aa 2922-15 that
it intends for every person employedas a teacher or as a full
time auxiliary employee at an institutionof higher education
Co become a member. of the Rctircmcnt System ao a condition. of
employment. :
The plain and unambiguouslanguageof Section 3 of Article
2922-U declares that participationin the Optional Retirement
Program is in lieu.of active membershipin the Retirement System
ana is limited to.Ufacultvmembers" only as defined.in'Section2(a)
of the same'statute:'Attorney General Opinion&I-315 (1968).
The 1egislature"has clearly,defined'.a "facultymember” and clearly
restricted-theOptional Xatiremsnt-Program to faculty members
by specific reference. throughoutthe body.of.the bill and as set
out in theabove quoted sections.of.thestatute.
The legislaturehas thus created a special retirementpro-
gram.for a specially designatedgroup of employees at institutions
of higher education who are designatedby name and definition as
"faculty'members"and the-provisionsof said law can only apply to
members~of~thatspecial group. Therefore,the're.strictions of
~Sect1on.S am 6 on rejornrng tne Teacner xetlretintsystem would appl;
only to those employees, of institutionsof higher'educationwho
are classified as a "facultymember". An employee of an institution
of higher education who has bean classifiedas a "faculty member"
but has changed to another employmentwhich would no longer met the
definition of "faculty merberk as set out in Article 2922-li woula
therefore no.longer be eligible to participatein the optional
Retirement Program, and would be required to rejoin the Teacher
Retirement System under the requirementof Atti~cle 2922-1.03
because.they are no longer under the exemptions set out in Article
2922-1.03b. However said former faculty member would have to meet
the requirementsof Section 40aof Article IIIof the Texas ConStituti'
in order to receive benefits from the Teacher Retirement System.
. . . ..^
or. Trank H. Jackson, page 9 (M-647)
In Attorney General Opinion M&l96 (1968)we held that
the provis$oqe .ofSection.7 of Article 2922-11 were unconstitutional
for the following.reasons:
"Since'Artiole2922-11 does not provide
or contemplatethat a recipientof the Teacher
Retirement-Systemfuna who elects to.participatein
the Optional RetirementProgramwill.release to
the State..the.'moneys contributedby the State to
the Optional RetirementProgram to his credit, it
follows that-so-longa5 a faculty.memberis a recipient of
the Teaoher.RetirementSystem Fund, he is not
eligiblr~to'reooivoany benefit8 from the Optional
Retirement-Program: He may easily cease to be a
recipient ofthe Teacher Retirement System
fund by withdrawing. from the Teacher Retirement
System and withdrawingfrom the fund all contributions
he has made'thereto. See Section 48a of Article III
of the Texas.Constitution: Section 6 of Article 2922-11.
Of course i upon-the withdrawal of such cont.ributions
from the fund, the’faculty member will thereby forfeit
and relinquish all accrued tightn an a member of
the Teacher RetirementSystem.
"Since Section 7 of Article 2922-li attempts
to permit the recipientsof the Teach&r Retirement
Fund to be-eligible for another State pension without
'such other state pension retirement fund, contributed
& the State to.tho credit of the recipient,being:
release&to the.State of Texas,' said section 7
violates the-abovequoted provisions. of,Sectiod'48a.ofArticle I
of the.Texas.Constitution and is, therefore, un-
constitutional'andvoid because necessarily antagonistic
to the clear~constitutional provision. 1.2Tex.Jur.2d
374, ConstitutionalLaw, Sec. 30.".(Emphasisadded.)
For the same reasok as set out BbOVe, we hold that
the former faculty member would be.required.tocash in his optional
RetirementProgram and withdraw his benefits under the Optional
Retirement Program; otherwisehe would not be eligible for
benefits under the Teacher RetirementProgram, unless he released
his benefits of the Optional RetirementProgram to the State of
Texas .as a condition for,recelvingbenefits'from the Teacher
Retirement'Systemas required by Section 4aa of Article III of the
Texas Constitution.
-3101-
Mr. Frank M. Jackson, page 16 (M-647)
The provision of Article 2922-1.04(e),and Article..
2922-2.05would control his rejoiningthe Teacher Retirement
System. Your first two questions are ankwered in the affirmative,
subject to meeting the requirements of Section 48a. Article
III of the Texas Constitution.
Your third question is answered in the negative for the
LSSPIUU 4~ set out In Attorney rieneral’s VplnlOn M-AYb that +hC
Legislature has provided for two separate and alternate retirement
programs and,by the provisionsof Sections 5 and 6 of Article
2922-li.and the restriction of Section 48e of Article III of the
Texas Constitution that there can be no credit allowed in the
Teacher Retirement System for that period of,participationin the
Optional Retirement Program Furthermore,we find nothing in the
statutes Involved which would allow a person employed in a state-
supported institutionof higher education as a faculty member to
receive credit with the Teacher RetirementSystem for service
while a mcmbcr of .the Optional Retirement Program.
The conclusionswe have reached above in answering your
first three questions make it unnecessary to answer your fourth
question.
SUMMARY
Article 2922-1.03,V.C.S., requires ail
persons employed as teachers or auxiliary
eau'loyeaoof an institutionof higher education
to be members of Teacher RetirementSystem of
Texas unless they are members'ofOptional he-
tirement Program.
Article 2922-11,V.C.S., provides an
Optional RetirementProgram for "facultymembers”
only as defined in said statute.’
Former "facultymembers" who no longer
meet definition of "facultymember” are required
ta rejoin Teacher Retirement syetcm PS provided for
under Article 292,2-1.03,2922-1.04 and 2922-2.05
V.C.S. but said former faculty members ate not
eligible to receive credit with the Teacher
Fbatirement~System of Texas for any service during
which time they were members of the .Cptional
Retirement Program.
4
General of Texas
-3102-
Mr. Frank M. Jackson, page 11 (M-647)
Prepated by William J. Craig
Aesistant Attorney General
APPROVED:
OPINIOrj CoMMITT.EE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
W. 0. Shults
Houghton Brownlee
Arthur Sandlin
Tom Sedberry
MEAD& F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
-3103-
Untitled Texas Attorney General Opinion
Combined Opinion