- 

The Attorney General of Texas 

February 5, 1980 

Honorable Joseph N. Murphy, Jr. 

Executive Director 

Employees Retirement System of Texas 

P. 0. Box 13207, Capitol Station 

Austin, Texas 787ll 

Opinion No. MW-138 

Re: 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. 

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 
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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