Untitled Texas Attorney General Opinion

Mrs. B. B. Sapp Director and Executive Secretary Teacher Retirement System of Texas Austin, Texas Opinion No. V-1289 . Re: Legality of member of Board of Trustees of the Teacher Retire- ment System appointed under Article 2922-1, pg s6, subset. (2) (d), . . ., continuing to serve es trustee upon acceptance of retlre- Dear Mrs. Sapp: ment benefits. You have asked this office for an lnter- pre~tatlonof Section 6, subsection (2) (d), Art- icle 2922-1, V.C.S., which provides that three of the trustees of the Teacher Retirement System shall be members of the Retirement System and that these members "shall serve for terms of six years, or until their successors are qualified." In your request,~you state that the Board of Trustees of the Teacher Retirement System has interpreted this provision to mean that If a member of the Teacher Retirement System Is noml- nated by the members of the System and is appointed by the Governor and confirmed by the Senate, that person may serve for a term of six years, even though he accepts retirement benefits under the Teacher Retirement Law before the expiration of his term. You ask whether this Interpretation is cor- rect. Section 6 of Article 2922-1, V.C S., as amended, Insofar as pertinent to thls opinion, pro- vides as follows: "(1) The general administration and responsibility for the proper operation Mrs. B. B. Sapp, page 2 (V-1289) of the Retirement System and for making effective the provisions of the Act are hereby vested In a State Board of Trus- tees . . . " 2) The Board shall consist of six (6I trustees, as follows: (a) The State Life Insurance Com- missioner, ex officio. (b) The Chairman of the State Board of Control of Texas, ex officio. (c) A person nominated by the State Board of Education for a term of six (6) years who shall be confirmed by a two thirds (2/3) vote of the Sen- ate of the State of Texas present af- ter submission to the Senate by the State Board of Education of the per- son nominated. (d) Three (3) of the trustees shall be members of the Retirement System and shall be nominated by the members of the-Retirement System for a term of six (6) years each, accord- ing to such rules and regulations as the State Board of Trustees shall adopt to govern such nominations pro- vided that the first three (3) teach- = to serve as members of the State Board of Trustees shall be appointed by the Governcr . . . The terms of office of the first three -- immediate y er-trustees shall begin after they have qualified and taken the oath of office. They shall draw for terms of two (2), four (4), and six (6) years, which shall expire August 31, 1939, and August 31, 1941, and August 31, 1943, respectively. Thereafter, the State Board of Trus- tees shall rovide for the nomination of three (3 teacher-members bienially by popular election of members of the Retirement System, from which the Governor shall appoint one member to the State Board of Trustees; said mem- ber shall be subject to confirmation by two-thirds vote of the State Sen- ate. The members so appointed shall Mrs. B. B. Saw, page 3 (v-1289) serve for terms of six (6) years, or until their successors are qualified. . . . "(3) If a vacancy occurs in the office of a trustee, the vacancy shall be filled for the unexpired term In the same manner as the office was pre- VIOUS~Y filled. "(4) The trustees shall serve without compensation, . . .' (Em- phasis added throughout opinion.) Section 1 of Article 2922-l provides as follows: "The following words and phrases as used in this Act, unless a different meaning Is plainly required by the con- text, shall have the following meanings: ” . . . "(6) 'Member' shall mean any teach- er or auxiliary employee included in the membership of the System as provided in Section 3 of this Act. " . . . "(12) 'Beneficiary' shall mean any person in receipt of an annuity, a re- tirement allowance, OP other benefit as provided by this Act." Section 3 of Article 2922-l designates those persons Included In the membershl of the Teacher Retirement System. Subsection P5)(c) of Section 3 then provides as follows: "Should any member In any period of six (6) consecutive years after be- coming a member be absent from service more than five (5) consecutive years, OP should he withdraw his accUmUlated contributions, or should become a ben- eficiary or upon his death, he shall thereupo: cease to be a member; pro- Mrs. B. B. Sapp, page 4 (v-1289) vided, however, that any member who has twenty-five (25) years of credit- able servle in Texas may leave the servlceprlor to attaining the age of sixty (60) years and continue as a member of the Teacher Retirement Sys- tem by not withdrawing his accumulated contributions, . . ." The State Board of Trustees of the Teacher Retirement System of Texas was created by the Legisla- ture to administer the Retirement System established under Article 2922-1, V.C.S., pursuant to Section 48a, Article III, Constitution of Texas. It being a crea- ture of statute, power lies Inherent In the Legislature to provide by law for the selection and qualifications of the membership constituting that Board. Att'y Gen. op. v-219 (1947). In Section 6 of Article 2922-1, provision is made for a Board of six trustees. Subsection (2) (d) Rrovides that three of the trustees shall.be 'mem- bers of the Retirement System. B virtue of the pro- visions of Section 3, subsection (5 T (c) and Section 1, subsections (6) anti (12) of Article 2922-l it Is clear that a "beneficiary" under that Act is not a "member" of the Teacher Retirement System. 'Eenefi- clary" is defined to include any person In receipt of of a retirement allowance. Therefore any teacher- member trustee on the Board of Trustees who makes ap- plication for retirement benefits and Is awarded and receives a retirement allowance ceases to be, upon receipt thereof, a member of the Retirement System. He then becomes a beneficiary of the System, and, as such, has lost his former status as a member. Clearly, membership in the Retirement Sys- tem is a prescribed qualification as to ellgiblllty for nomination and appointment for the trustee of- fices covered by subsection (2)(d) of Section 5. Does the statute also mean that membership in the System is a necessary qualification to hold the offlce to which one has been lawfully nominated and appointed? The requirement in subsection (2)(d) that nthree (3) of the trustees shall be members of the Retirement System" is clear and unambiguous. It states a positive qualification requirement. It . . Mrs. B. B. Sapp, page 5 (V-1289) presaribes, in substance, that each of such trustees shall be members of the Retirement System as a neces- sary qualification for holding the office, as well as a necessary qualification for their eligibillty to nomination and appointment thereto. To conclude that membership In the System Is necessary only to estab- lish~eligibil.ityfor nomination and appointment to the office Is to read Into the express qualification requirement a restriction on Its application at variance with the clear mandatory pronouncement. We think the applicable rule is stated in 42 Am.Jur. 912, Public Officers, Sec. 41, as foll.ows: "Eligibility to public office Is of a continuing nature and must exist at the commencement of the term and during the oc- cupancy of the office. The fact that the ca~ndicate may have been qualified at the time 01 *rrselection Is not sufficient to entitle him to hold the office, If at the time of the commencement of the term or during the continuance of the incumbency he ceases to be qualified.n For cases supporting this rule, see Annotation, 88 A.L.R. 812, 828, and State ex rel. Olson v. Langer, 65 N.D. 68, 256 N.W. 377 (1934). But conceding, for discusslon~s sake only that the law Is ambiguous in this respect, it ought to be interpreted in the light of legislative pur- pose or intent, where that can be ascertained. We conceive that this purpose and policy is to eetab- lish and guarantee representation of the members of the Retirement System on the State Board of Trustees of that System in the manner and to the extent there- in provided. Such teacher-members representatives are selected from the nominees of the members of the Retirement System itself. The law so provides. They are peculiarly familiar by reason of their actual membership in the System with the needs and welfare of the members of that System. Incongruities arise if we conclude to the contrary, i.e., that membership in the System is a necessary qualification only for eligibllity for nomination and appointment to the Board. If a per- son lawfully appointed trustee of the Board is a member of the Retirement System on the day of his Mrs. B. B. Sapp, page 6 (V-1289) nomination or of his appointment, but immediately ceases to become a member of the System by reason of his becoming a beneficiary, he could serve his six years' term; and, if all three of such appointed teacher-member trustees chould happen to cease being members of the System during their respective terms of office, they would at111 constitute the member representation on the Board. Such contingencies are opposed to the policy of the statutewhose purpose is to require such three persons to be members of the Retirement System not only when nominated and ap- pointed to the Board but during their terms of of- fice. Accordingly, it is the opinion of this office that a trustee lawfully appointed and ser- ving on the State Board of Trustees of the Teacher Retirement System under the provisions of Section 6, subsection (2)(d), Article 2922-1, V.C.S., is not quallfed for membership on the Board when he ceases to be a member of the Teacher Retirement System and becomes a "beneficiary" and receives a retirement allowance under that System. SUMMARY I A member of the Board of Trustees of the Teacher Retirement System is not qualified for membership on the Board when he ceases to be a member of the Teacher Retirement System by becoming a "beneficiary' and receiving a retire- ment allowance under that S stem. Art. 2922-1, and 6, (69Sec. Sec. 1, y$T;y; .and (l;?), Sec. 3, subset. subset. (2)(d), V.C.S. APPROVED: Yours very truly, J. C. Davis, Jr. PRICE DANIEL County Affairs Division Attorney General Jesse P. Luton, Jr. Revlewlng Assistant Everett Hutchinson Chester E. Ollison Executive Assistant Assistant CEO:awo