June 17, 1952
Mrs. B. B. Sapp Opinion No. V-1465
Executive Director
Teacher Retirement Re: Actively employed or
System of Texas retired status of a
Austin, Texas member of the Teacher
Retirement System who
dies less than 30 days
after effective date
Dear Mrs., Sapp: of retirement.
Yo'ur req~uest for an opinion concerning
the membership status, active or retired, under the
Teacher Retirement Law of Dr. Clarence T. Gray at
the time of his death on May 20, 1951, reads in part
28 follow8:
"Dr. Clarence T. Gray asked the Teacher
Retirement Department for retirement benefits,
stating that his work with the.University of
Texas would terminate April 30, 1951. The re-
quest was made April 19, 1951, and the appli-
cation completed by Dr. Gray indicated that
he wished to receive his annuity payments under
Option No. I. Or,. Gray died May 20th.
"This department has ruled that Dr. Gray,
under the circ,umstancea, was not entitled to
retirement benefits, but died an active member,
and therefore, Mrs. Gray Is entitled to the re-
turn of Dr. Gray's accumulated deposits in the
System but is not entitled to retirement bene-
fits for the following reasons:
"Section 5, Subsection 7, Paragraph 5,
of the retirement law, as amended by the 47th,
48th, 50th and 518t Legislatures, reads as
follows:
"'With the provision that no optional
selection shall be effective in case a bene-
ficiary dies within thirty (30) days after
retirement and that such 2 beneficiary shall
be considered as an active member at the time
Mrs. B. B. Sapp, page 2 (v-1465)
of death, any member may, until the first
payment on account of any service benefit
become8 normally due, elect to receive his
prior-service annuity in an annuity payable
throughout life, or he may elect to receive
the actuarial equivalent at that time, of his
prior-service annuity in a reduced prior-
service annuity payable as provided in Op-
tions (l), (2), or (3) above, provided that
all payments under all prior-service annui-
ties are subject to adjustment by the State
Board of Trustees 28 provided in Section 5,
SUbSeCtiOn 2, Paragraph (b) of this Act; pro-
vided further, that the same option must be
Selected by 2 member for the payment of his
prior-service annuity as Is Selected by the
member for the payment of his membership
service annuity.'
"Since Dr. Gray Stated that his ServiCeS
with the University of Texas would terminate
April 30, 1951, 2nd since he chose Option No.
I, this department holds that he died an ac-
tive member, as he died within less than
thirty day8 after the effective date of his
retirement. This department has received
the deposits for the work rendered at the
University of Texas through the month of
April, 1951*
"In view of the fact that Dr. Gray ap-
peared on the University of Texas payroll
through April 30, 1951 and since his appli-
cation Stated that his services would termi-
nate on April 30, 1951, and further, since
he died on May 20, 1951, less than thirty
day8 after the effective date of his retire-
ment, are we within our right8 in holding
that Dr. Clarence T. Gray died an active mem-
ber not entitled to retirement benefit8 as
set forth in Option No. I?"
Section l(22) of the Teacher Retirement Law,
Article 2922-1, V.C.S., 28 amended, provides as follOW8:
"'Retirement' shall mean withdrawal
from service with a retirement allowance
granted under the provisions of this Act."
Mrs. B. B. Sapp, page 3 (V-1465)
Subd,ivision 1, of S,ection 5 of .Article 2922-l
provides in part:
"Any member may retire upon written ap-
plication to the State Board of Trustees.
The effective date of retirement for any mem-
ber, making application under this Act, shall
be, 2t the option of Bald member, forthwith
or as of the end of the school year then cur-
rent, provided 0 D -'
Subdivision 7 of Section 5 further provides:
"With the provision that, no optionai se-
lection shall be effective In case a benefi-
ciary dies within thirty (30) days after
retirement, 2nd that Such a beneficiary shall
be considered as an active member at the time
of death, any member may until the first pay-
ment on account of any service benefit becomes
normally due e,lect to,receive his membership
annuity in fan annuity payable througho,ut life,
or he may elect to receive the act,uarlal equiva-
lent at that time, of his membership annuity
in a reduced membership annuity payable through-
o,ut life with the provision that:
"Option (1). Upon his death, his reduced
membership annuity shall be continued through-
out the life of, and paid to, such person 2s he
shall nominate by written designation duly ac-
knowledged and filed with the State Board of
Trustees at the time of retirement; or 0 0 0'
This 8ubdiviSiOn also contain8 a similar pro-
vision with respect to a member'8 prior-service annuity.
Under the quoted provisions of the Teacher Retirement
Law, 2 member eligible for service retirement under sub-
division 1 of Section 5, Article 2922-1, may elect to
retire under any one of the optional allowances set out
In Subdivi8iOn 7 of Section 5, provided he make8 his
election before "the first payment on account of any
service benefit become8 normally due." But subdivision
7 of Section 5 specifically provide8 (1) that no such
option21 selection shall be effective in case a benefi-
ciary member dies within thirty days after retirement,
and (2) that s'uch a beneficiary member who dies within
thirty days after retirement under an optional selection
"shall be considered 2s an active member at the time Of
Mrs. B. B. Sapp, page 4 (V-1465) -.
death." Thus, the Legislature ha8 provided that the
thirty-day provision of subdivision 7 0,f Section 5 Is
to be calc,ulated from and after the date that the mem-
ber has been retired with an optional selection allow-
ance granted. Section l(22) of Article 2922-1, define8
"retirement" for the purpose of the law to mean "with-
drawal from service with a retirement allowance granted."
Woods V. Reilly, 147 Tex. 586, 218 S.W.2d 437 (1949).
Under the fact8 submitted, Dr. Gray on April 19,
1951, made application to retire in accordance with sub-
divl8iOn 1 of Section 5 and stated that he would withdraw
from service with the University of Texas on April 30,
1951: On the date of application he attempted to select
"Option 1" settlement. By stating that his work,at the
University would be terminated on April 30, 1951, he
thereby indicated that he should be retired forthwith
after his employment with the University Ceased and not
at the end of the then current school year. Such 2 choice
is granted member8 eligible to retire in subdlvision 1 of
Section 5. His retirement prior to April 30, 1951, could
not have been had under these circumstances. There must
be 2 withdrawal from service before service retirement
benefit8 may be granted under the Teacher Retirement Law.
Art. 2922-1, Sec. l(22) and Sec. 5, subd. 1, V.C.S, Dr.
Gray died on May 20, 1951, which was less than thirty days
from April 30, 1951, the earliest date on which he could
have been retired under the law and facts herein considered.
Thus, he had not retired within the meaning of the act,
but was an "active member' within the meaning of SUbdiViSiOn
7 of Section 5 at the time of hi8 death.
Based upon what the Legislature has eXpre88ly
provided in the Teacher Retirement Act, the r,uling of
the Teacher Retirement System of Texas that Dr. Gray died
an 'active member" within the meaning of S'UbdiViSiOn 7 of
Section 5, Article 2922-1, V.C.S., Is correct, Such
Change8 as may be necessary in the law in order to reach
a more just and equitable result Is 2 matter solely within
the discretion of the Legislature.
SUMpARY
Under the existing law a member of the
Teacher Retirement System who makes an optional
selection under Section 5, 8ubdlviSiOn 7,
Mrs. B. B. Sapp, page 5 (v-1465)
Article 2922-1, V.C.S., and who die8 within
thirty days after termlnation of active serv-
ice, is an active member at the time of death,
although application for retirement was made
more than thirty day8 prior to death. Sec.
1(22), Art. 2922-1, V.C.S.; Wood8 v. Reilly,
147 Tex. 586, 218 S.W.2d 4377949).
Your8 very truly,
APPROVED: PRICE DANIEL
Attorney General
Mary Kate Wall
Reviewing Assist2nt
Charles D. Mathews BY
First Assistant Chester E. 01118On
AsEkistant
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