Honorable Uortimer Brown

hecutive Seooe~ F,;r zement Sydem OSTexaa

. 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 retlrementeyeternOSTexeu.
Wereceived your letter dated April 9, 1941, which is eelfexplanatory, end reedl), in part, aa follo~sr

“1, Are persona whoare engaged In the emergency relief educational program*here tesohere unable to get employmentln regular sohoole were employed under the relief program at the time the teacher retirement eyrtem wanvoted 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 andNo. 2 are ln the efftiatlve, will you advlae If it should:be the duty of the lndlvlduel to nowpay 5 per cent of his salary 83earned 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~

“IIn 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.npublic schools, colleges and unlveraitles t’ supported wholly or partly by the State;

- . - . . _Honorable Wgrtlmer &own, P8ge 2 o-3399

“and the deflnltlone OSthe tenw @teacher’ and ‘public rohooll u found In Seotlm 1, Subeectlon 2 4nd3 of the Tewber Retirement Aot which read u f011owr1

“~Publlc Sahool’ ehall meenany 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 meana 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 anduniverrities, andany other legally constituted board or agency of an l duoatlonal institution or orsuliwtion ruppor\tedwholly 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 meana permon render servloe to &ganlwd public eduaatlon In proferslone and 9 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 OSthe Bederal Qovertxnentand 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 myunderrtandlng that employees of the Bnergency Education Programere empoyeerrof the Federal Qovernmentand are relmbur6ed entlrely anddirectly by the Federal Qover,nment, It Is alao myunderstanding that Boneof 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 meanthe State ol Texas and any of ltr deeigneted agents or agencler, with reeponslblllty andauthority for public educritlon, such
as the commonandIndependent school boards, the boards of regents of state colleges andunlversitlen, the county school boarda, or anyother agency of and **within** the Stoto bywhich a ijerson maybe 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 whoara toaohara on tha date aa of which the Ratireiaant System lal atabllahed ahall bacomomambera u of that 88t8 a8 a oondltlon of their mloyment 

### unleaa within a period of ninety (90) day8 after September 1, 1937, any muchteacher till tll8 with the State Board of Truetee on a form preaorlbed by auohBoard, a notloo of hi8 election not to be oovered In the membershipof the Systemanda duly axeouted waiver of all preaant andproapaotlva beaaflta whlohwould othomlac Inure to himon aooount of hla participation in tha Retireinen: System.”

As weunderatand the recta ooncernlng the persons mentioned In your letter, they are employed directly by the Federal Government. Wealso underetand thalr eelary la paid directly b; the Federal Governmentand their services are controlled by a Federal Agency:and not by
a State Agenoy

. For thee@ x%aaonawedo not believe that the peraona mentioned In your Slrst quartion are teachers 88 that term la defined ln the Act, 8upr8, andthey are not therefore, el&lble to pertlclpate in the teacher retirement ayeten. &or further re88on, wenote that Subaectlon 1 of Section 3 of the Aat, aupra, provides that pereona whoare teachers at the time of the eatabllshment of the retirement system shall become subject thereto ea acondition of their employmentunless they file a rejection within a period of time. Wedonot believe the Leglslature intended to so condition the employnrnt of a person whola not ln the employmentof any State Agency, but, on the contrary, la In the employmentof the Federal Government.

In answer to your eecond question, wearc of the opinion that the persona mentioned are not teachers as thet term is uaed in the Act notwithstanding they maypertozu 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 andexclusively k the Federal Goverrrment.

Since weanswer your first two questions in the negative, WE do not amwcr your third queetion.

LStdbrwc
APPRGVRD

APRIL25, 1941 a/ Grwer Sellers XRST ASSISTANT ATTOFL’iZYGlZ.WiML Yours very truly

Bys/Lee Shoptaw Lee Shoptaw Assistant

APPROVZD

Cpinlon Comlittee 3y s/NE Cihakmin