Untitled Texas Attorney General Opinion

Hon. B. B. Sapp Director and Executive Secretary Teacher Retirement System of Texas Austin, Texas Opinion No. V-366 Re: V rlltlityof rule of !acher Retirement iidxm ooncernl= ,*ibility of em- .oyrre of State elee- Imynarj 3.n8tltutions I membership in the ,aehep R8tfiement ratem. Dear Mrs. #SOP: We referherein to your lott#r 0s recent d8te acbmowleUgea by the Attorney General on &gust 3, 1947, from which we quote a8 follows: “Oa july 23rU the Beard ef Tru8tiea OS the Teacher Retirement Sfstsm Puleb thrt a8 of September I, 1947, those employees Of’iState Elrramrynary ShnrtLtutlon8who are members of the Teacher Retirement Systuficont!f.nuetQ be conalaerea aa eligible ror mMshi9 in the Teacher Retirement 8ygsteman8 be P tained as membdrs of the Taacher Retlremant 8y8terpa8 long is thay oacupf a porlttenin 84y Btate Eleemosynary rOstitutien d&&k ~88 orn8Zdered an eligible position for nemberclhlp II&the Teacher Retirement Syst8m prior t@ $I$tember 1, 1947; and, any employee of a St*te tieemosye nary Institution begi- w@.s rzitfor the first tim(,after (Ieptember1, &#r7, be con- slaarea aa eLiglbla for me&w?aWp in the Teach- er Retirement Systrm if saeh emplOp ia Bc- tivrlr engaged in teaching of teaCh%ng; rO&, if ruch tul@bgae In active teaching he shall not be o?nsidered eligible for membership in the TeaclierRetire- ment Bljstem. Hon. B. B. Sapp - Page 2 (V-366) "This rule was passed after the State Employees' Retirement System was authorized. The Board of Trustees would like to have your opinion relative to their authority for passing said rule determining eligi- bility of employees of State Eleemosgnarg Institutions with reference to the Teacher Retirement System subsequent to September 1, 1947. . . .n Article 2922-1, Section 1, par. (6), V.C.S., de- fines "member" In the Teacher Retirement System as any teacher included in the membership of the System as pro- vided in Section 3 of this Act. Article 2922-1, Section 1, par. (3), defines "teacher" as used In Section 3 as follows: “(3) 'Teacher' shall mean a person em- ployed on a full-time, regular salary basis by boards of common school districts, boards of independent school districts, county school boards, Retirement Board of Trustees, State Board of Education and State Depart- ment of Education, boards of regents of colleges and universities, and any other legally oonstltuted board or agency of an educational Institution or organization sup- struotion, in public schools as defined in ?3ubsectlon(2) of this SeCtiOn.” (Ihaphasis ours ) Article 2666, V.C.S., providing for the crea- tion of school districts for eleemosynary instltutlons, reacts: 'The State Board (of Education) is authorized to create new school districts at such of the several Eleemosynary Insti- tutions of this State, incluaing the State Orphan Home, or at any and all Orphan homes ihi. 0. B. Sapp - Page 3 W-366) or like institutions that may be estab- lished by any Fraternal organization, or at any Institution for dependent or ae- llnquent children maintained by any County in this State; provided, that the number of children within the scholastic age in each instance be suf’flclentto ~justlfy such action. The terrltarlal limit8 in each case shall be co-extensive with the property lines of the instltutlooa.” ana Article 2667 provides that such school districts, when created,-.&all be controlled.as Sar as possible by the law pertaining to inae endent school b;tstrtctsi dr&gg v. Hill, 58 S.W. (267 150. Such school districts cri%ted In the ele&mosynary institutions of this State E&B ~@ubjeotto and entitled to the benefits of th& %WWhsr ;Retlrement System of Texas. B B 168 Acts 1947 50th Leg 353 i ({b be’coipllei in Vernon: s Civil S&%e~‘~s%ti- cl& 6228a) providing for the establishment of the EQ- &a$eeki Retirement System of Texas as of September 1 P947, guwfiaee’that a %embBr” shall mean anfremployei ihuluded In the msmbership of the System as provided in Be&Ah 3 of this Act, (Art. 6228a, Sea. 1, par. E). Artilc,le6228a, Sec. 3, par. A, reads in part as follows: "Sec. 3. The membership of said Re- tirement System shall be composed as fal- lows : “A. All persons who are employees on : the date as of which the Retirement System Is established shall become members as of that date as a condition of their em loyment ; unless within a period of ninety (90P ,days after September 1, 1947, any such employee shall file with the State Board of TrUSteeS on a form prescribed by such Board, a notice of his election not to be covered ii~the mem- bership of the System and a duly exebuted waiver of all present and prospective bene- fits which would otherwise Inure to him on account of his participation in the Retlre- meht System. The following persons shall, however, not be eligible for participation in the Retirement System: Hon. B. B. Sspp - Page 4 (V-366 1 “1. . . . any person who is covere6 be the Teachers RettiQl88nt:_Qxstea. . .‘*(J&u- phasis ours) and Section 1, par. C, of the Bmployees Retirement Act defining “empl8yee” as used therein, pr8vldes that “employee” shall not include any person who is cover84 by the T8acher Retirement System of the State of Texas, It is, therefore, cleaply and speclficall~ provided that any State employee who Is covered by the Teacher Retirement System shall not be eligible for membership in the *ployees’ Retlroment System. The provisions of the rule passed by the Teaeher Retirement loaN on July 23, 1947, hereinabove quoted, insofar as it pertains to employees of Stiate EleemosJnory Institutions who are members of the Tuch- er Retirement System prior to and on September &, 1947, is, in all respects proper and legal ln the light ef the above-quoted statutes. In contemplation of the establishment OS the Employees RetirQBent System as of September 1, %$+7, the Teacher RetlPament Board also provided in it,8rule passsd on July 23, 1947, that any employee of a State EleemosJnUSJ Institution beginning e.mploymentfor:the first time after September 1, 1947, be considered as eligible for membership in the Teacher Retirement Sys- ten if such employee Is actively -aged In teaching or supervision of teachers; anU if such employee is not engaged in active teaching, he shall not be csn- slderea ell(ible for membership In the Teacher Retlre- ment System. Ve find no conflict in the provisions of this rule with either the Teacher Retirement Act or the Employees Retirement Act, and are of the opinion that ample authority rests in the Board OS Trustees of the Teacher Retirement Systu8 to promulgate same by virtue of the provisions of Section 1, par (3), Article 2922-1, v. c. 3. SUMMARY The rule passea by the Board oS~Trus- tees of tke Teacher Retirement System of Texas on July 23, 1947, relative to the eligibility of e8~loysrs of the State Elee- mosynary Institutions to ne~bershlp ia the Sm. 5 0. b. sapp - ~rig;e (V-366) Teacher Retirement System after September 1, $947, when the Bployess Retirement System may be established, is le@:sland proper, being in accordance with the pro- vl8lons of lCrtic1e2922-1, Sec. 1, par. and Article 6228a Sec. 1, iii?:~%:'~,c. 3, par. A, V.&L Very truly yours ATTORNRY GBtIpuL OF m -I Chester,E. Olllaon cm:egt;ajm Assistant