Untitled Texas Attorney General Opinion

. 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-