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The Attorney General of Texas
February 5, 1980
Honorable Joseph N. Murphy, Jr. Opinion No. MW-138
Executive Director
Employees Retirement System of Texas Re: Whether reemployment by
P. 0. Box 13207, Capitol Station the state of a retired state
Austin, Texas 787ll employee entitles him to resume
membership in the retirement
system and establish retirement
credit for service not previously
established.
Dear Mr. Murphy:
You ask whether a person who retired from both state employment and
elective official service, received retirement benefits for almost three
years, and then returned to state employment may take advantage of the
following provision of the employee’s retirement act:
. . . A member with service as an elective state
official may, prior to leaving state employment or
state office and upon payment of all applicable
contributions, fees, and interest applicable from the
fiscal year in which creditable service was
performed, receive creditable service for any
calendar year in which the member was eligible to
take the oath of office, or in which he served, as an
elective state official.
Acts 1979, 66th Leg., ch. 747, at 1835 (to be codified as V.T.C.S. art. 6228a
S 3.A.3.) (emphasis added).
The retirement statute defines member as “any officer or employee
included in the membership of the System as provided in Section 3 of this
Act.” V.T.C.S. art. 6228a, S LC. Section 3 states who is eligible for the
elective state official class and the appointive officer or employee class in
the retirement system. However, section 3 also states that “[mlembership is
terminated by . . . retirement. . . .‘I V.T.C.S. art. 6228a, SS 3.A.5, 3.D.
Thus, someone who has retired is no longer a member of the retirement
system and is not eligible to receive creditable service under the provision
P. 444
Honorable Joseph N. Murphy, Jr. - Page Two (NW-138)
you inquire about. Cf. State 523 S.W.2d 453 (Tex. Civ. App. - Austin 1975,
no writ) (person wsretired under County and District Retirement System is not a
member). This interpretation is supported by the fiscal note attached to this provision
when enacted by the 66th Legislature. The cost of the amendment was calculated on “the
basis of persons currently members of the Employees Retirement System who would be
eligible to purchase service of this type. . . .‘I Fiscal Note to House Bill No. 1147, April 26,
1979, filed in Legislative Reference Library.
You also ask whether reemployment by the state of a retired state employee entitles
him to resume membership in the retirement system and establish retirement credit for
service not previously established. Section 5.B.4. of article 6228a relates to the
reemployment of retired appointive officers or employees. It states that any retired
appointive officer or employee may return to state employment on a temporary basis, as a
part-time employee, or a consultant. Provision is made for suspension of retirement
benefits after a certain time. It expressly provides that “[alny retired member
temporarily employed in a class of service from which he has retired shall not contribute
to the Retirement System during such reemployment, and the Retirement Plan in effect
at the time of his original retirement shall remain unchanged.” V.T.C.S. art. 6228a,
S 5.B.4. This clearly states that retirees shall not resume the status of contributing
members to the retirement system on reemployment by the state. You inform us that
under your long-standing practices, retired state employees who return to state
employment do not become members of the system. The construction of a statute by the
state agency charged with its administration is entitled to great weight. Armco Steel
Corporation 386 S.W.2d 894 (Tex. Civ. App. - Austin
1965, writ ref’d n.r.e.1. In our opinion, reemployment by the state of a retired state
employee &es not entitle him to resume membership in the retirement system and
establish retirement credit for service not previously established.
SUMMARY
A state employee relinquishes membership in the retirement
system when he retires. He does not resume membership upon
reemployment with the state, and hence is not a member of the
retirement system eligible to receive creditable service under
V.T.C.S. article 6228a, S 3.A.3.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
P. 445
. .
Honorable Joseph N. Murphy, Jr. - Page Three (NW-138)
Prepared by Susan Garrison
Assistant Attdrney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Jim Allison
David B. Brooks
Walter Davis
Bob Gammage
Susan Garrison
Rick Gllpin
Bruce Youngblood
P. 446