Untitled Texas Attorney General Opinion

Honorable Uortimer Brown hecutive Seooe~ F,;r zement Sydem OS Texaa . Dear Sir1 Opinion lo. O-3399 %r Uhether oP not persona engaged by the Federal Govemment in the emergent; relief lducatlonel program are ewlble to participate ln the teacher retlre- ment eyetern OS Texeu. We received your letter dated April 9, 1941, which is eelf- explanatory, end reedl), in part, aa follo~sr “1, Are persona who are engaged In the emer- gency relief educational program *here tesohere un- able to get employment ln regular sohoole were employ- ed under the relief program at the time the teacher retirement eyrtem wan voted ln Texae, ellglble for pa;a:;:patlon ln the teacher retirement ryetem of “2. Are persona non engaged or heretofore en- gaged ln oduaatlonal work for the Federal Govermtlent whereln the full malery Is paid to said employee by the Bederal Government, but the work of the employee is perrormed ln public school buildings and *here materiels of the public schools are used, lllglble for participation in the teacher retirement system of Texae? “3. If the answers to Question No. 1 and No. 2 are ln the efftiatlve, will you advlae If it should : be the duty of the lndlvlduel to now pay 5 per cent of his salary 83 earned from the Federal Gov- ernment or is he ellglble to retirement without thle payment? “This department has been operating for three and one-half years with the belief that the prQvlslon In the Constitution of the State, Article 3, Section 488 whlah reads a8 follows~ “I In addition t> the powers given to the Leg- lclature, under &ctlon 38 of Article 3, It shall hr\ve the right to levy f::::es to provide a Xetlrcment -Fund for persons employed i.n public schools, colleges and unlveraitles supported wholly or partly by the State; - . - . . _ t’ Honorable Wgrtlmer &own, P8ge 2 o-3399 “and the deflnltlone OS the tenw @teacher’ and ‘public rohooll u found In Seotlm 1, Subeec- tlon 2 4nd 3 of the Tewber Retirement Aot which read u f011owr1 “~Publlc Sahool’ ehall meen any eduoatlonel organlwtlon mapported wholly or partly by the State under the authority and mpervlrion of a logally oonetituted board ob rgenoy having authority lnd re- ~ponaibllity for any funetlon of public educratlon. “~Toaaher~ &all mean a pereon employed on a iull-time regular eelmy barfe by boards of eom- non lrchool dlstclotr boards of lndependmt sahool dirtclotr, county school boardr, Retirement Board of Truetees, State Board of Education and State De- partment of !Zducatlon, boards of regents of colleges and univerrities, and any other legally constituted board or agency of an lduoatlonal institution or orsuliwtion ruppor\ted wholly or partly by the State. In all eaaea o? doubt, the Retirement Board of Txwtees, hereinafter defined, shall determine g;ther & perron 18 a tesaher 06 defined in thle A teacher shall mean a permon render servloe to &ganlwd public eduaatlon In proferslone9 and buelnem admlnibtratlon and supervlslon and In instruc- tion In public echoola as defined in subsection (2) of tjtls section. “do not permit a pereon employed in eduoa- tional work OS the Bederal Qovertxnent and receiving all of hlr salary directly from the Federal Qovern- ment to be considered 86 ellglble for participation In the Teacher Retirement Program of Texar. It le my underrtandlng that employees of the Bnergency Education Program ere empoyeerr of the Federal Qovern- ment and are relmbur6ed entlrely and directly by the Federal Qover,nment, It Is alao my understanding that Bone of these emergency education employee@ are granted permlselon to hold their c;iaauea In churches and various other >U.ces. . . , . Subsection 5 of Section 1 of the Teacher Retirement Act, codified ln Vernon’s Annotated Civil Statutes as Article 2322-1, reado a~ follownl “(5) ‘&ployer’ shall mean the State ol Texas and any of ltr deeigneted or agencler, with agents reeponslblllty and authority for public educritlon, such as the commonand Independent school boards, the boards of regents of state colleges and unlversitlen, the county school boarda, or any other agency of and within the Stoto by which a ijerson may be employed f3r service In public education. Ponoqabla Mortlmor &own, -0 3 s-3399 8ubaaotlon 1 of 8eotion 3 o? aald Aat made 88 followa: ”(1) All persona who ara toaohara on tha date aa of which the Ratireiaant System la latabllahed ahall bacomo mambera u of that 88t8 a8 a oondltlon of their mloyment unleaa within a period of ninety (90) day8 after September 1, 1937, any much teacher till tll8 with the State Board of Truetee on a form preaorlbed by auoh Board, a notloo of hi8 election not to be oovered In the membership of the System and a duly ax- eouted waiver of all preaant and proapaotlva beaaflta whloh would othomlac Inure to him on aooount of hla participation in tha Retireinen: System.” As we underatand the recta ooncernlng the persons mentioned In your letter, they are employed directly by the Federal Government. We also underetand thalr eelary la paid directly b; the Federal Govern- ment and their services are controlled by a Federal Agency: and not by a State Agenoy. For thee@ x%aaona we do not believe that the peraona mentioned In your Slrst quartion are teachers 88 that term la defined ln the Act, 8upr8, and they are not therefore, el&lble to pertlclpate in the teacher retirement ayeten. &or further re88on, we note that Sub- aectlon 1 of Section 3 of the Aat, aupra, provides that pereona who are teachers at the time of the eatabllshment of the retirement system shall become subject thereto ea acondition of their employment unless they file a rejection within a period of time. We do not believe the Legls- lature intended to so condition the employnrnt of a person who la not ln the employment of any State Agency, but, on the contrary, la In the employment of the Federal Government. In answer to your eecond question, we arc of the opinion that the persona mentioned are not teachers as thet term is uaed in the Act notwithstanding they may pertozu their wmk in a public school building. Thla Is for the reason that they are not employed by any State Educational Agency~but are employed directly and exclusively k the Federal Goverrrment. Since we answer your first two questions in the negative, WE do not amwcr your third queetion. Yours very truly By s/Lee Shoptaw Lee Shoptaw LSt dbrwc Assistant APPRGVRD APRIL 25, 1941 a/ Grwer Sellers XRST ASSISTANT ATTOFL’iZY GlZ.WiML APPROVZD Cpinlon Comlittee 3y s/NE Cihakmin