Untitled Texas Attorney General Opinion

NEYGENERAL TEXAS AUSTIN. TEXAS 0otober 18, 1949 Hon. B. B. Sapp, Dlr8otor and Exeoutlre Seoretary Teaoher Retirement System of Texar Awtln, Texas 0p1lli0nIlo.v-937. 38: The eliglbllltyOS a mima teaoher ta m- oelve retirementbew- fits after having been granted diaabilltj Dear Mrs. Seppt benefits. We refer to yolarletter whloh states in sub- stance: John Doe, age iifty (50), with thirty- one (31) year8 oreditable mmviee, made ap- plioatlon for disability retirement although he wan eligible $or service retireslent,and the mai0ai Board granted alsabilltybaneflta. He has not attained the age of 60. Can dlrrabilitFpayments be diaoontluued at hia request in order that his aooount me7 ba re-established,thereby making hLm eligi- ble to make appllcatlonfor aepvlm retire- ment? Seation 5, subdivision 1 of Article 2922-1, the Teaoher Retirement Aot, aouoerna servlos retlrament beuefita and provides in part8 "An7 member may retire upon written ap- plication to the State Board of Truatefaa . . . Any member with thirty (30) years of oredita- ble serrioe may ret+* at any time Pegardless of the age obtained e . . Any member who has eooepted service retirement shall be imligi- ble and disquallfledto remma end/or oontiuue employment In the przbllosohools of Texan, and ~&JO #hall be Ineligible,and dlaqaal~fledto be otherwise employed in the publio aahoola of HOU. B. B. Saps, page 2 (V-937) -. this State; . O . provldsd further, that any -tired member who acoepts employment as a tesoher, exoept In the present~worldoonfllot and SOP twelve (12)'monthsthereafter,aa above apeoliied,shall iorfeit a,l&fi@its as a rstlred teacher end any and all olalma to any retirementbsueflta under this Aot. . .' Under the sutmltted fasts John Doe having had thirty-one (31) years of'oreditable servloe, oould hays applied for pensatientservise rstirsmentrather than for dlasbllltg retirement. Howevsr, to preserve his right to return to the teaohlng profession la the futurs when his health was regalned, i.e., be rsstorsd to aotlve ae* vi08 (Seo.5, aubd.S(a), (b)), he ohose to apply for dis- ability rstlrsment. Se&ion 5 of the Teachers Betlmmnt Aat oon- oernlng disability retirementbenefita, provldes In part: ?Jpon the applloationof s msmber . . . any msmber who has had twenty (20) or more yaars of oreditable service may be rstlred -. by the State Board of Trustees . e . on a dlsabillty ratirsment allowanseprovlded that the Medical Board, (80s. 6, subd.(12)) alter a medloal examinationof swh member, shall oertlfy that suoh member is mentally or physiaallg lnoapaoltatedfor the fur- ther prformaaoe of duty, that rush inoape- oity 1s likely to be permanent, and that swh member shall be retired." (Subd.3). *Upon rstlrsment for dlsablllty a mem- ber ahall raselvs a O e a disability IW?- tlrement allowance . . ." (Subd.4). "Should the Iledloal'Boardreport and oertlfy to the State Board of Trustees that suoh dlsabllltybenefloiary is no longer physically or mentally lnsapaoltatedfor the performanaeof duty, . . o and should the State Bomrd of Trustees by a majority vote oonow In suoh report, than ths amount of his sllovsnoe shall be diaoontinued.. *" (Subd.5 (a)). "should a di88bllitYbeabflai8rJrunder the age of sixty (60) years be restor to r , Eon. B. 8. Sapp, page 3 (V-937) aetlve aervlae, his retirement allowance shall oease, he shall egaln bsooms m member of the RetirementSystem, and any reserves ou his memberskip annaity at that time in the membership Annuity Reserve Fund shell be treusferredto the Teaoher Savlag Fuud and to the State Xembership AoCUmul8tion Fund, respectively,in propopttioa to the original sum transferred to the Membership Annuity Reserve Fund at Retirement. Upon restorationto membership, any prior-servlqe certlfIosteon the basis of whioh his ser- vice was oomputsd at the time of his re- tirement shall be restored to full foroe and effect, aud in sdaition, upon his sub- sequeut retirementhe shall be credited with all his membership servloe. Blo mem- ber eligible to retire for servioe et aix- ty (60) years of age shall be allowed to retire on a disability ellowance . . ." (Subcf.5(b)). r Under the quoted provisions of Seotion 5, owe 8 member mekes mpplloatioafor disablli.ty retlrsment benefits, and haa been oertlfied by the Redioal Board and mpproved by the State Board of Trustees, he becomes a disabilitybeneficlery under the Aot as dlstingulshed fr o ml ~member of the Retirement System. Be rsmeins in that status until he attains the age of sixty when he automatioellgbsaomss retired for servloe (A.G.OpInlon X0.0-3834) or until he is rsstored to satlve servloe and membership status upon oertifioationof the Medical Board to the Board of Trustees that he is no longer in- oapaoltatedfor performance of duty and the Trustees vote to ct5ncurin the Medical Boardda report. Under the facts submitted,John Doe has not attained the age of sixty, nor has he been rsatored to active service by Msdloal Board and Board of Trustee a&ion which is nea- easmry for restorrtion of his membership status in the Retirement Syatene. The Aot whiah changes the stetus of an motive or aontributlugmsmber to that of a retired member Is the order or resolution of the Boerd of Trus- tees. Likewise, the Aot which ohenges the status of a dismbility beneficiaryto that of an motive member is the order OP resolution of the Board of Trustees. Under the faots submitted,the teaoher member mode applioationfor dlseblI.lty retirementbenefits mud ,I- not for ssrvioe retirement benefits. Under the low, he could hove applied for either. Had the member chosen to . Eon. B. B. Sapp, page 4 (V-937) apply for serriae retlrsmsntbensflts, he would then have had the right to shoose the mmnner in which his ser,Hoe r&frame& mllowauoe should be paid. This ahoioe lnoludsd a selestion of tbs mssimum allowsnoe to be paid during appliomnt~sown life, or one of three options uader any one of which he would raeelse a rs- duoed allowenoeduring his lifetime with pmyment of a certain amount theraafterto a beaeficiaryto be seleat- ed by the mpplioant.Sea.5, aubd.7, of Art.2%?2-1,V.C.S. If 8 ternsher,age fifty, with thirty- one yews orsditmble servloe In the Teaoher Retlrsment System; mpplied for, waa grmnted disability retirementbenefits, mnd hoe not beea restored to aative sarviee and member- ahlp in the.System, he mmy not bs granted service retirement. Art.2922-1,Sea .5, subds. 1,3,4,6(e),5(b), 7; sea.6, sub4.(12),V.C.S., as smendea;A.Q.Oplnlonno.O-3834. Yours very truly, A!tTORBgP@EBgRALOFTgXAS CEormw Cheater R. Olllson Assistant FIRST ASSISTART ATTO~GRRRRAL --.