NEYGENERAL TEXAS

**AUSTIN. TEXAS** 

0otober 18, 1949

Hon. B. B. Sapp, Dlr8otor and Exeoutlre Seoretary Teaoher Retirement System of Texar Awtln, Texas 0p1lli0n Ilo. v-937. 38: The eliglbllltyOS a mima teaoher ta moelve retirementbewfits after having been granted diaabilltj Dear Mrs. Seppt benefits.

We refer to yolar

letter whloh states in substance: John Doe, age iifty (50),with thirtyone (31) year8 oreditablemmviee, made applioatlon for disabilityretirementalthough he wan eligible $or service retireslent, and the mai0ai Board granted alsabilltybaneflta. He has not attained the age of 60. Can dlrrabilitF

paymentsbe diaoontluued at hia request in order that his aooountme7 ba re-established, therebymaking hLm eligible to make appllcatlonfor aepvlm retirement? Seation 5, subdivision 1 of Article 2922-1, the Teaoher RetirementAot, aouoerna servlos retlrament beuefita and provides in part8

"An7 member may retire upon written application to the State Board of Truatefaa

. . . Any member with thirty (30) years of oreditable serrioe may ret+* at any time Pegardless of the age obtained e . . Any member who has eooepted service retirement shall be imligible and disquallfledto remma end/or oontiuue employmentIn the przbllo sohools of Texan, and ~&JO #hall be Ineligible,and dlaqaal~fledto be otherwiseemployed in **the** publio aahoola ofHOU. B. B. Saps, page 2 (V-937)

-.
this State;
. O
. provldsd further, that any -tired member who acoepts employmentas a tesoher, exoept In the present~world oonfllot and SOP twelve (12)'months thereafter,aa above apeoliied,shall iorfeit a,l& fi@its as a rstlred teacher end any and all olalma to any retirement

bsueflta under this Aot.
. .' Under the sutmlttedfasts John Doe having had thirty-one (31) years of' oreditable servloe,oould hays applied for pensatient servise rstirsmentrather than for dlasbllltgretirement. Howevsr, to preservehis right to return to the teaohlngprofessionla the futurs when his health was regalned, i.e., be rsstorsd to aotlve ae* vi08 (Seo.5,aubd.S(a), (b)), he ohose to apply for disability rstlrsment.

Se&ion 5 of the Teachers Betlmmnt Aat oonoernlng disabilityretirementbenefita,provldes In part:

?Jpon the applloationof s msmber

. . . any msmber who has had twenty (20) or more yaars of oreditableservicemay be rstlred by the State Board of Trustees
. e . on a dlsabilltyratirsmentallowanseprovlded that the Medical Board, (80s. 6, subd.(12)) alter a medloal examinationof swh member, shall oertlfy that suoh member is mentally or physiaallglnoapaoltated for the fur**ther** prformaaoe of duty, that rush inoapeoity 1s likely to be permanent, and that swh member shall be retired." (Subd.3). *Upon rstlrsmentfor dlsablllty a member ahall raselvs a O e a disability IW?- tlrement allowance

. . ." (Subd.4). "Shouldthe Iledloal'Board **report** and oertlfy to the State Board of **Trustees** that suoh dlsabllltybenefloiaryis no longer physicallyor mentally lnsapaoltated for the performanaeof duty,

. . o and should the State Bomrd of Trustees by a majority vote oonow In suoh report, than ths amount of his sllovsnoe shall be diaoontinued.

. *" (Subd.5 (a)). "should a di88bllitYbeabflai8rJr under the age of sixty (60) years be restor to -.r

,
Eon. B. 8. Sapp, page 3 (V-937)

r

,Iaetlve aervlae, his retirementallowance

shall oease, he shall egaln bsooms m member of the RetirementSystem, and any reserves ou his memberskip annaity at that time in the membership AnnuityReserve **Fund** shell be treusferredto the Teaoher Savlag Fuud and to the State Xembership AoCUmul8tion **Fund,** respectively,in propopttioa to the original sum transferredto the Membership Annuity Reserve Fund at Retirement. Upon restorationto membership,any prior-servlqe certlfIosteon the basis of whioh his service was oomputsd at the time of his retirement shall be restored to full foroe 

### and effect, aud in sdaition,upon his subsequeut retirement he shall be credited with all his membership servloe. Blo member eligible to retire for servioe et aixty (60) years of age shall be allowed to retire on a disability ellowance

. . ." (Subcf.5

(b)). Under the quoted provisions of Seotion 5, owe 8 member mekes mpplloatioafor disablli.ty retlrsment benefits, and haa been oertlfiedby the Redioal Board and mpprovedby the State Board of Trustees,he becomes a disabilitybeneficleryunder the Aot as dlstingulshed f r o m l **~member of**  the RetirementSystem. Be rsmeins in that status until he attains the age of sixty when he automatioellg

bsaomss retired for servloe (A.G.OpInlon X0.0-3834) **or** until he is rsstored to satlve servloe and membership status upon oertifioation of the Medical Board to the Board of Trustees that he is no longer inoapaoltatedfor performanceof duty and the Trustees vote to ct5ncur

in the Medical Boardda report. Under the facts submitted,

John Doe has not attained the age of sixty, nor has he been rsatored to active serviceby Msdloal Board and Board of Trustee a&ion which is neaeasmry for restorrtionof his membership status in the RetirementSyatene. The Aot whiah changes the stetus of an motive or aontributlug msmber to that of a retired member Is the order **or** resolution of the Boerd of Trustees. Likewise, the Aot which ohenges the status of a dismbilitybeneficiaryto that of an motivemember is the order OP resolutionof the Board of Trustees.

Under the faots submitted,the teaohermember mode applioationfor dlseblI.lty retirementbenefits mud not for ssrvioe retirementbenefits. Under the low, he could hove applied for either. Had the member chosen to.

Eon. B. B. Sapp, page 4 (V-937)

apply for serriae retlrsmsntbensflts,he would then have had the right to shoose the mmnner in which his ser,Hoe r&frame& mllowauoe should be paid. This ahoioe lnoludsd a selestion of tbs mssimum allowsnoe to be paid during appliomnt~sown life, or one of three options uader any one of which he would raeelse a rsduoed allowenoeduring his lifetimewith pmyment of a certain amount theraafterto a beaeficiaryto be seleated by the mpplioant.Sea.5, aubd.7, of Art.2%?2-1, V.C.S.

If 8 ternsher,

age fifty, with thirtyone yews orsditmble servloe In the 

### Teaoher RetlrsmentSystem; mpplied for, waa grmnted disabilityretirementbenefits, mnd hoe not beea restored to aative sarviee and memberahlp in the.System, he mmy not bs granted service retirement. Art.2922-1, Sea .5, **subds.** 1,3,4,6(e),**5(b),** 7; **sea.6,** sub4.(12), V.C.S., as smendea;A.Q.Oplnlonno.O-3834.

CEormw Yours very truly, A!tTORBgP@EBgRAL

OFTgXAS

Cheater R. Olllson

Assistant

FIRST ASSISTART ATTO~GRRRRAL

--.