THEAITORNEYGENERAL
OF TEXAS
AUSTIN. TEXAS 78711
February 18, 1977
The Honorable Leonard Prewitt Opinion No. H-945
Executive Secretary
Teacher Retirement System of Texas Re: Purchase of Teacher
1001 Trinity Street Retirement credit for
Austin, Texas 78701 service as a teacher in
the armed forces.
Dear Mr. Prewitt:
You have presented several questions for our considera-
tion concerning the ability of a member of the Teacher
Retirement System to purchase out-of-state teaching credit
for teaching while such person was a member of the United
States Armed Forces. In this regard, you first ask:
Does teaching at a United States military
service academy or teaching as an instructor
in any Reserve Officers Training Corps
program while a member of the United States
Armed Forces qualify for purchase as out-
of-state teaching service under Section
3.26 of the Texas Education Code?
Section 3.26 of the Texas Education Code states:
(a) Any member of the retirement system
who has been employed as a teacher or as
an auxiliary employee in any public school
system maintained in whole or in part by
any other state or territory of the United
States or by the United States for children
of United States citizens may purchase
equivalent membership service credits under
this retirement system for such service.
P. 3949
The Honorable Leonard Prewitt - page 2 (H-945)
Certainly, there are numerous types of fact situations
which are encompassed in your questions, and the determination
of whether a particular situation falls within the statute
involves a determination of fact. The Legislature, in this
case, has specifically delegated the authority to make such
fact determinations to the State Board of Trustees of the
Teacher Retirement System in section 3.23, which reads, in
pertinent part:
(a) Under such rules and regulations as
the State Board of Trustees may adopt a-
memberan xlowed membershipservice
credit for each year of service rendered in
accordance with the provisions of this
chapter if he has made and maintained with
the retirement system all deposits and
payments required by this chapter or prior
existing laws. (Emphasis added).
In view of the foregoing, we cannot say as a matter of law that
a member of the military employed as a teacher in a United
States Armed Forces service academy or as an instructor in
a Reserve Officers Training Corps program in a public school,
is or is not eligible under 3.26 to purchase membership
service credits.
Although your remaining questions are conditioned on an
affirmative answer to the first question, we will nevertheless
consider them on the assumption that should the State Board
of Trustees of the Teacher Retirement System reach an
affirmative conclusion on the issue presented by your first
question, these questions will become relevant. The remaining
questions are as follows:
[M]ay such service be purchased, at
the option of the member of the Retirement
System, under either Section 3.26 of the
Code as out-of-state teaching service,
or under Sections 3.23 and 3.24 of the
Code as military service?
[Mlay such service be purchased twice
by the member of the Retirement System
under both Section 3.26 of the Code as
out-of-state teaching service and Sections
3.23 and 3.24 of the Code as military
service?
P. 3950
; .
The Honorable Leonard Prewitt - page 3 (H-945)
[M]ay such service be purchased by the
member of the Retirement System as out-
of-state teaching service under Section 3.26
of the Code when the member has the maximum
military service permissible under Section
3.23 of the Code?
Section 3.26(a) (quoted above) permits any member of
the retirement system who has been employed as a teacher or
auxiliary employee in an out-of-state public school system
to purchase equivalent membership service credits for such
service. Section 3.26(c) goes on to provide that:
(c) For each year that deposits are made,
the member shall be granted immediately
upon payment of the required deposit one
year's membership service credit subject,
however, to the special conditions which
are:
(1) No person shall be allowed to
acquire credits on the basis of
employment as a teacher or auxiliary
employee outside this state in excess
of one year for each one year of
service in Texas..
. . . .
(3) No more than 10 years' total
credit can be purchased under the
provisions of this section.
Section 3.23 provides that:
(b) Any member who performed one or more
years of military duty while a member of
the retirement system shall be permitted to
deposit to his individual account in the
member savings account for each year of
duty an amount equal to his deposits made
with the retirement system during the last
preceding full year of service as a teacher
or auxiliary employee. He shall then be
entitled to one year of membership service
credit for each year of military duty.
P. 3951
The Honorable Leonard Prewitt - page 4 (H-945)
(c) Any member who performed one or more
years of military duty prior to becoming
a member of the retirement syxem shall be
permitted to deposit to his individual
account in the member savinas account for
each year of such military duty, but not to
exceed five years, an amount equalohis-
deposits made with the retirement system
during the first full year of service as a
teacher or auxiliary employee after becoming
a member of the retirement system. He shall
then be entitled to one year of membership
service credit for each year of military duty.
(Emphasis added).
If a member of the retirement system has performed such service
so as to fall within either of these categories, we can
determine no statutory basis for precluding that member
from choosing the category under which he wishes to purchase
membership service credits.
We note that section 3.24 contains no provision for
urchase of membership service credit. Instead section 3.24
!kr---
ows a member who has performed military duty to count
years of military service for the purpose of determining
el;gi;ility for retirement but not for the purpose of
ca cu sting the amount of benefits payable to the member on
retirement. A person who has performed military service but
who fails to make deposits entitling him to membership service
credits under either section 3.26 or 3.23, may still be
granted military leave credits under section 3.24.
Therefore, we answer your second question in the
affirmative: a person eligible to purchase membership service
credits under both sections 3.26 and 3.23 has the option of
choosing the section under which he will purchase membership
service credits. If membership service credits have not been
purchased the person may receive military leave credits for
time served on military duty.
Your third question concerns whether a member who
qualifies to purchase membership service credits under both
sections 3.26 and 3.23 may purchase double credits for the
same period of time, i.e. may purchase ten years' membership
service credit for fiveears of service as a member of the
military and as a teacher in an out-of-state public school
system. Section 3.21 provides:
P. 3952
* .
The Honorable Leonard Prewitt - page 5 (H-945)
(a) The State Board of Trustees shall
determine, by appropriate rules and regulations
how much service in any _ vear
_ is equivalent to
one creditable year of service, --- but in no case
shall more - than -one creditable year
- of
- service
be
- givenor-_ all service inone
---- school year.
(b) Years of creditable service at retire-
ment . . . shall consist of the number of years
of membership service credits . . . and military
leave credits to which [a member] is entitled.
(Emphasis added).
The language of this section clearly prohibits the purchase
of double membership service credits for one year of service.
Additionally, we believe this section and section 3.24
prohibit receiving unpurchased military leave credit for the
same time period for which a member has purchased membership
service credits. Therefore, your third question is answered
in the negative.
Your final question concerns whether a person who has
received maximum military membership service credits under
section 3.23 may purchase additional membership service
credits under section 3.26.
Under section 3.23(b) no maximum is placed on the number
of years of service credit which may be purchased by a member
of the retirement system who "performed one or more years
of military duty while a member of the retirement system."
Section 3.23(c) specifies that a member who performed his
military duty prior to becoming a member of the retirement
system is limited to a purchase of five years of membership
service credits for performance of military duty. If a
person has been determined to be eligible under both sections
3.23 and 3.26, we can find no intention, embodied in
affirmative legislation, to prohibit purchase of additional
years of service credit under section 3.26 beyond the
maximum provided in section 3.23(c), as long as double credit
is not received for any one year. Cf. State v. Rapport, 69
A.2d 645, 648 (Conn. 1949). We believe such a?i interpretation
does not contravene the purpose of the Teacher Retirement
System statutes as expressed by the court in Teacher Retirement
System v. Duckworth, 260 S.W.Zd 632, 636 (Tex. Civ. App. --
Fort Wozh 1953) aff'd, 264 S.W.Zd 98 (Tex. 1954):
P. 3953
. I
The Honorable Leonard Prewitt - page 6 (B-945)
[T]he principal purpose of our teacher
retirement statute is to provide support
for teachers after their teaching days
are over, and courts should give such a
statute a liberal construction in order
to effectuate the purpose intended.
Therefore, your final question is also answered in the
affirmative with the caveat that more than one year
of credit may not be received for any one year of service.
SUMMARY
If the Board of Trustees of the Teachers
Retirement System should determine that a
member of the military who has taught at
a United States military service academy
or as an instructor in a Reserve Officers
Training Corps program is eligible to
purchase out-of-state teaching service
credits under section 3.26 of the Texas
Education Code, that person may choose
to purchase membership service credits
under either section 3.26 or 3.23. A person
may not receive more than one year of
creditable service for time served in any
one school year and therefore may not purchase
double service credits under both sections.
However, a person who qualifies to purchase
membership service credits under both sections
may purchase credits beyond the maximum
allowed by section 3.23(c) if he purchases
the additional credits under section 3.26 and
he does not receive more than one year
of creditable service for service performed
in any one school year.
Attoney General of Texas
P. 3954
I .
The Honorable Leonard Prewitt - page 7 (H-945)
APPROVED:
Assistant
Opinion Committee
jwb
P. 3955