Untitled Texas Attorney General Opinion

"P‘HEATTORNEY GENERAL OFTEXAS AUHTlN 11. TExas PRICE DANIEL ATTORNEYGENERAL October 8, 1949 Hon. B. B. Sapp, Director Opinion X0. V-926. and Executive Secretary Teacher Retirement Re: Employment of a person System of Texas who receives service Austin, Texas retirement benefits Un-- der Art. 2922-1, V.C.S., by boards, agencies, or departments covered by the Teacher Retirement Dear Mrs. Sapp: Law. We quote from your recent letter: "Section 5, Sub-section 1, of the Teacher Retirement Law reads in part as follows: 11 8 Any member who has accepted service ie&ement shall be ineligible and disqualified to resume and/or continue em- ployment in the public schools of Texas, and also shall be ineligible, and disqual- ified to be otherwise employed in the pub- lic schools of this State; . . .' 'We have interpreted this to mean that af- ter a person has accepted retirement bene- fits, he cannot be employed in any capaci- ty by boards of common school districts, boards of independent school districts, county school boards, State Board of Trus- tees, State Board of Education and State Department of Education, boards of regents of colleges and universities,P and any oth- er legally constituted board or agency of an educational institution or organization supported wholly or partly by the State. "Are we correct in this interpretation?" We are informed that you are not here concern- ed with the employment of persons retired on August 31, 1942, and prior thereto, who are permitted under other Hon. B. B. Sapp, page 2 (V-926) provisions of Subsection 1 of Section 5 to resume em- ployment in the teaching profession. Since Attorney General Opinions numbered O-7155 and V-554 discuss in detail such employments, we shall not consider that matter. Prior Attorney General Opinion No. o-5097, dated February 15, 1943, which was rendered before the above quoted provision of Subsection 1 of Section 5 was incorporated into the Teacher Retirement law, held that a person retired for service might not be reem- ployed as a teacher under the Act. This opinion said further that it was clear that the Legislature intended that a person retired for service shall not be reem- ployed as a teacher. More recent Opinion No. V-554 dated August 6, 1948, points out that this legislative intention was announced in clear and unequivocal lan- guage by the insertion in the Teacher Retirement Law of the provision you quote and otharsrelated thereto. The term "teacher," as defined for purposes of the Teacher Retirement Law, is much broader than the term normally connotes. Subsection (3) of Section 1, Article 2922-1, V.C.S., reads: "'Teacher' shall mean a person employed on a full-time, regular salary basis by boards of common school districts, boards of indepen- dent school districts, county school boards, State Board of Trustees, State Board of Educa- tion and State Department of Education, boards of regents of colleges and universities, and any other legally constituted board or agency of an educational institution or organization supported wholly or partly by the State. In all cases of doubt, the State Board of Trus- tees, hereinafter defined, shall determine whether a person is a teacher as defined in this Act. A teacher shall mean a person ren- dering service to organized public education in professional and business administration and supervision and in instruction, in public schools as defined in Subsection (2) of this Section." Persons included in this definition, save for specified exceptions,are covered by the Teacher Retire- ment System Law and are members of the retirement system . . Hon. B. B. SaPP, page 3 (v-926) as a condition of their employment. sec. 3, subd. (2), as amended. The 51st Legislature in Senate Bill I?o.333, made auxiliary employees eligible for membership in the Teacher Retirement System and defined R8uxillarg employ- ees" (Subset. (3a), Sec. 1, Art. 2922-l) as follows8 "'Auxiliary employee' shall mean a person, other than a 'teacher' as herein- above defined, employed on a full-time, regular salary basis by a comaon district, independent school district, county school board, the Teacher Retirement System of Texas, State Board of Education, State De- partment of Education, boards of regents of colleges and universities, and any oth- er legally constituted board or agency of an educational institution or organization supported wholly or ,partlyby the State. Provided, however, that no person who is employed by the State Board of Control in eleemosynary institutions under its con- trol, shall be considered to be an 'auxil- iary employee' within the contemplation of this subsection. In all cases of doubt, the State Board of Trustees shall deter- mine whether a person is an aL+liary em- ployee as defined by this Act. Such persons, save for certain exceptions, will be covered by the Teacher Retirement System Law and become members of the system as a condition of their e loyment. Sec. 3, Subd. (3) (a), (b) and (c), Subd. (4 l-7 (a) and (b), Art. 2922-1, as amended. Subsection 1 of Section 5, as quoted herein, concerns any member who has accepted service retire- ment, be he amed "teacher' member or a retired "auxiliary employee" member. In substance it.provides that any such member is ineligible and disqualified to resume employment in the public schools and ineligible and disqualified to be otherwise employed in the pub- lic schools of Texas. This clearly maxim that such retired member shall not resume or continue employment in any capacity in the public schools of Texas, and such retired member is disqualified for employment in any capacity in the public schools of Texas. Since re- tired members are thus made ineligible for employment Hon. B. B. Sapp, page 4 (V-926) in the public schools it follows that the bo'ards (des- ignated in Subset. (3j and (3a) of Sec. 1) are preclud- ed from employing any such members in any capacity. The term "public school," as defined for pur- poses of the Teacher Retirement Law, is much broader than the term normally connotes. Subsection (2) of Section 1 of Article 2922-1, V.C.S., reads: "'Public School' shall mean any edu- cational organization supported wholly or separately by the State under the author- ity and supervision of a legally constitut- ed board or agency having authority and responsibility for any function of public education.' By,virtue of this definition the State Board of Education, the State Department of Education, State Board~of Trustees of the Teachers Retirement System of Texas, and the State Colleges and Universities are in- cluded in "public schools of Texas" as provided in sub- section (2) of Section 1, when considered along with ;;;;e;tiy; (3), (3a), and (5) of Section 1, Article -9 * .S., as amended. Therefore, in the light of the law and the opinions above considered, it is our conclusion that a person who has accepted service retirement under the Teacher Retirement Law cannot lawfully be employed in any capacity by boards of common school districts, boards of independent school districts, county school boards, State Board of Trustees (Teacher Retirement System of Texas), State Board of Education and State Department of Education, boards of regents of colleges and universities or any other legally constituted board or agency of an educational institution or organization supported wholly or partly by the State. Because of the plain provisions of the Acts of the Legislature, a person who has accepted service retirement under the Teach- er Retirement Law cannot lawfully be employ- ed in any capacity by boards of common school districts, boards of independent school districts, county school boards, State Board of Trustees (Teacher Retirement System . . Hon. B. B. Sapp, page 5 (V-926) of Texas), State Board of Education and State Department of Education, boards of regents of colleges and universities or any other legal- ly constituted board or agency of an educa- tional institution or organization supported 51st Leg.; A. G. Opinions O-5097, V-654. Yours very truly, ATTORNEY GENERAL OF TEXAS Chester E. Ollison CEO:mw:bh Assistant APPROVED 2,/L--J- G+ FIRST ASSISTANT ATTORNEY GENERAL