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 l ducatlonel program are ewlble 

to participate ln the teacher retlrement eyetern OS Texeu. 

We received your letter dated April 9, 1941, which is eelfexplanatory, end reedl), in part, aa follo~sr 

“1, Are persona who are engaged In the emergency relief educational program *here tesohere unable to get employment ln regular sohoole were employed 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 engaged 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, l llglble 

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 Government 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 Leglclature, 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 t’ supported wholly or partly by the State; 

- . - . . _ 
Honorable Wgrtlmer &own, P8ge 2 o-3399 

“and the deflnltlone OS the tenw @teacher’ 

and ‘public rohooll u found In Seotlm 1, Subeectlon 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 l nd re- 

~ponaibllity for any funetlon of public educratlon. 

“~Toaaher~ &all mean a pereon employed on 

a iull-time regular eelmy barfe by boards of eomnon lrchool dlstclotr boards of lndependmt sahool 

dirtclotr, county school boardr, Retirement Board 

of Truetees, State Board of Education and State Department of !Zducatlon, boards of regents of colleges 

and univerrities, and any other legally constituted 

board or agency of an l duoatlonal 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 proferslone 9 and 

buelnem admlnibtratlon and supervlslon and In instruction In public echoola as defined in subsection (2) 

of tjtls section. 

“do not permit a pereon employed in eduoational work OS the Bederal Qovertxnent and receiving 

all of hlr salary directly from the Federal Qovernment 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 Qovernment 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 agents or agencler, with 

reeponslblllty and authority for public educritlon, such 

as the common and 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 l atabllahed 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 axeouted 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 Government 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 Subaectlon 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 Leglslature 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. 

LSt dbrwc 

APPRGVRD APRIL 25, 1941 

a/ Grwer Sellers 

XRST ASSISTANT 

ATTOFL’iZY GlZ.WiML 

Yours very truly 

By s/Lee Shoptaw 

Lee Shoptaw 

Assistant 

APPROVZD Cpinlon Comlittee 3y s/NE Cihakmin