Untitled Texas Attorney General Opinion

E NEU GENERAL
F XAS

April 27,,1967

Hon. Frank M. Jackson Opinion No. ~-64
Executive Secretary
Teacher Retirement System Re: Whether a person receiving
of Texas disability benefits from
Lowlch Building the Teacher Retirement
Austin, Texas 78714 System, who becomes engaged
In a gainful ocoupatlon,
should have his disability
benefit reduced or suspended
on the basis of his current
Bear Mr. Jackson: earning capacity.
You have requested the opinion of this office regarding
the following speclflc questions:
“1. If a person receiving dlsablllty
benefits from the Teacher Retirement System
becomes engaged In a gainful occupation,
should the amount of his allowance from the
Teacher Retirement System be reduced to an
amount by which the salary earned during
his last year of service In the public schools
of Texas exceeds his present earning capacity
or suspended if his current earning capacity
exceeds his last earned salary In the public
schools of Texas?
“2. If your answer to Question No. 1
Is in the affirmative, would the fact that the
person receiving disability benefits from the
Teacher Retirement System Is past age sixty
(60) permit him to be employed In a gainful
occupation without such benefits being reduced
or canceled as a resuit of such earnings in
a gainful occupation?
Article 2922-1, Vernon’s Civil Statutes, provides for
the creation and operation of the Teacher Retirement System of
Texas D Section 6 thereof establishes a disability benefit, and
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Hon. Frank M. Jackson, page 2 (M-64)

sets forth the terms and conditions under which such benefits
may be paid. Although lengthy, It is necessary that we quote
the major portion of Section 6:
"Sec. 6. 1. Upon application of the mem-
ber or (where the member 1s unable to make ap-
plication) of his employer or legal representative
acting on behalf of the member, the State Board of
Trustees may, not less than thirty (30) nor more
than ninety (90) days after filing of said appllca-
tlon, retire such member upon the applicable dls-
ability benefit set out below, provided that the
Medical Board, after a medical examination of suoh
member, shall certlfv that such member is mentally
or physically disabled for the further performance
of duty and that such dlsablllty 1s likely to be
permanent. In such event, the member shall retire
subject to the provisions of this Act, upon a dls-
ability retirement benefit as follows:
"(a) If the member has less than ten (10)
years of creditable service at date of such retlre-
ment, he shall be paid a disability benefit of
Fifty Dollars ($50.00) per month, for the duration
of such disability, or for the duration of his life,
or for a period of months equal to the number of
months of creditable service rendered by such mem-
ber prior to date of such retirement, whichever
term is shorter.
"(b) If the member has more than ten (10)
years of creditable service, but Is not eligible
for service retirement, he shall receive the
standard annuity calculated on the basis of his
creditable service to date of retirement, or the
sum of Fifty Dollars ($50.00) per month, whlch-
ever amount Is greater, for the duration of his
disability; and In the event the disability re-
tirement occurs after or shall continue until
such person attains sixty (60) years of age,
the total disability shall thereafter be con-
clusively presumed continuous for the remainder
of his life.
"2. Beneficiaries Retired on Account of
Disability.
'Once each year during the first five (5)
years following retirement of a member on a
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Hon. Frank M. Jackson, page 3 (M-64)

disability retirement allowance, and once in
every three-year period thereafter, the State
Board of Trustees may, and upon his application
shall, require any disability beneficiary who
has not yet attained the age of sixty (60) years
to undergo a medical examlnatlon, such examlna-
tion to be made at the place of residence of said
beneficiary or any other place mutually agreed
upon, by a physician or physicians designated by
the Board of Trustees, Should any dlsabillty
beneficiary who has not yet attained the age of
sixty (60) years refuse to submit to at least
one medical examination In any such periods by a
physician or physicians designated by the State
Board of Trustees, his allowance shall be dls-
continued until his withdrawal of such refusal,
and should his refusal continue for one year,
all his rights In and to his allowance shall be
revoked by the State Board of Trustees.
"(a) Should the Medical Board report and
certify to the State Board of Trustees that such
disability beneficiary Is no longer physically or
mentally incapacitated for the performance of duty,
or that such disability beneficiary 18 engaged in
or Is able to engage in a gainful occupation, and
should the State Board of Trustees by a majority
vote concur in such report, then the amount of
his allowance shall be discontinued norbe reduced
to an amount by which the amount of the salary
earned during his latest year of creditable service
exceeds his present earning capacity.
In partial answer to our first question, you are ad-
vised that under Subsection ?(a7 , quoted supra, as applied to a
person under the age of 60, if the Medical Board certifies that
the disability beneficiary is engaged In or IS able to en~gageIn
a gainful occupation, and the Board of Trustees
vote concurs In such report, the amount of dlsab
shall be reduced or discontinued as the statute specifies. Such
reduction or dlscontlnuance 1s thus a matter for the exercise of
discretion 'bythe Board of Trustees , within the limits established
by the statute.
With regard to your remaining questions, your office has
advised us that the following facts give rise to these questlonsr
A school bus driver has been employed for
less than 10 years, became physically disabled,
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Hon. Frank M. Jackson, page 4 (M-64)

and retired under the provisions of Article
2922-1(a), V.C.S. After he passed the age of
60, he was elected to a political office which
pays him more than his previous salary as a
school bus driver.
We note that Subsection l(b), quoted supra, applies
to persons who have more than 10 years of service, and provides
for a conclusive presumption of continuing total dlsablllty for
those persons past the age of 60. This pre,sumptlonis not ex-
pressly stated In Subsection l(a), but It is our view that It
nevertheless exists for persons who retire,under this provision,
for the reason that Subsection 2 operates to exclude persons
past 60 from the requirement of periodic medical examinations.
Since there is no requirement for periodic medical review for any
person past 60, regardless of the provision he may have retired
under, It is our view that all disability retirees past the age
of 60 are conclusively presumed to be totally disabled.
Notwithstanding the foregoing, the statute makes It
incumbent upon the Medical Board and the Board of Trustees to
determine whether a disability beneficiary is engaged In a galn-
ful occupation. We have been advised by your office that the
Retirement System requires each disability beneficiary to file
an annual statement of earnings. These statements are delivered
to the Medical Board9 which In turn certifies them to the Board
of Trustees. If the Board of Trustees by a majority vote concurs
in such report by the Medical Board, the amount of the disability
allowance 1s reduced or discontinued In the manner prescribed In
Subsection 2(a).
We are of the opinion that thenabove-described procedure
accurately tracks the requirements of the statutes, fulfilling both
the letter and intent thereof. The statute Is so constructed that
persons over 60 are not subject to periodic medical examinations,
but are subject to an annual employment Income review, regardless
of which dlsablllty provision they retired under. If such review
discloses an employment income, the disability allowance to such
persons is properly subject to reduction or discontinuance. In
specific answer to your second questlonP you are therefore advised
that the fact that a person receiving disability benefits Is past
60 does not permit him to be gainfully employed without being sub-
ject to reduction or discontinuance of his disability benefits.
SUMMARY
Under Article 2922-1, Section 6, V.C.S.,
if a person receiving dlsablllty benefits from
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 . .

Hon. FrankM. Jackson, page 5 (M-64)

the Teacher Retirement System becomes engaged
in a gainful occupation, the amount of his
disability allowance may be reduced or dls-
continued in the manner prescribed in the statute.
The fact that a person receiving disability
benefits Is past the age of 60 relieves him of
the necessity of undergoing periodic medical
examinatlans, but does not permit him to be
gainfully employed without being subject to
reduction or discontinuance of his disability
benefits.
very truly,

General of Texas
Prepared by Malcolm L. Quick
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Pat Bailey
John Grace
Robert Flowers
John Banks
STAFF LEGAL ASSISTANT
A. J. Carubbl, Jr,

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