Mrs. B. B. Sapp 

Director and Executive Secretary 

Teacher Retirement System of Texas 

Austin, Texas 

Opinion No. V-1289 

. Re: Legality of member of 

Board of Trustees of 

the Teacher Retirement System appointed 

under Article 2922-1, 

pg s6, subset. (2) (d), 

. . ., continuing to 

serve es trustee upon 

acceptance of retlreDear Mrs. Sapp: ment benefits. 

You have asked this office for an lnterpre~tatlon of Section 6, subsection (2) (d), Article 2922-1, V.C.S., which provides that three of 

the trustees of the Teacher Retirement System 

shall be members of the Retirement System and 

that these members "shall serve for terms of six 

years, or until their successors are qualified." 

In your request,~ you state that the 

Board of Trustees of the Teacher Retirement System 

has interpreted this provision to mean that If a 

member of the Teacher Retirement System Is nomlnated by the members of the System and is appointed 

by the Governor and confirmed by the Senate, that 

person may serve for a term of six years, even 

though he accepts retirement benefits under the 

Teacher Retirement Law before the expiration of his 

term. You ask whether this Interpretation is correct. 

Section 6 of Article 2922-1, V.C S., as 

amended, Insofar as pertinent to thls opinion, provides as follows: 

"(1) The general administration and 

responsibility for the proper operation 
Mrs. B. B. Sapp, page 2 (V-1289) 

of the Retirement System and for making 

effective the provisions of the Act are 

hereby vested In a State Board of Trustees . . . 

" 2) 

six (6 I 

The Board shall consist of 

trustees, as follows: 

(a) The State Life Insurance Commissioner, ex officio. 

(b) The Chairman of the State 

Board of Control of Texas, ex officio. 

(c) A person nominated by the 

State Board of Education for a term of 

six (6) years who shall be confirmed 

by a two thirds (2/3) vote of the Senate of the State of Texas present after submission to the Senate by the 

State Board of Education of the person nominated. 

(d) Three (3) of the trustees 

shall be members of the Retirement 

System and shall be nominated by the 

members of the-Retirement System for 

a term of six (6) years each, according to such rules and regulations as 

the State Board of Trustees shall 

adopt to govern such nominations provided that the first three (3) teach- 

= to serve as members of the State 

Board of Trustees shall be appointed 

by the Governcr . . . The terms of 

office of the first three 

er-trustees shall begin -- immediate y 

after they have qualified and taken 

the oath of office. 

for terms of two (2), 

They shall draw 

six (6) years, 

four (4), and 

which shall expire 

August 31, 1939, and August 31, 1941, 

and August 31, 1943, respectively. 

Thereafter, the State Board of Trustees shall rovide for the nomination 

of three (3 teacher-members bienially 

by popular election of members of the 

Retirement System, from which the 

Governor shall appoint one member to 

the State Board of Trustees; said member shall be subject to confirmation 

by two-thirds vote of the State Senate. The members so appointed shall 
Mrs. B. B. Saw, page 3 (v-1289) 

serve for terms of six (6) years, or 

until their successors are qualified. 

. . . 

"(3) If a vacancy occurs in the 

office of a trustee, the vacancy shall 

be filled for the unexpired term In 

the same manner as the office was preVIOUS~Y filled. 

"(4) The trustees shall serve 

without compensation, . . .' (Emphasis added throughout opinion.) 

Section 1 of Article 2922-l provides as 

follows: 

"The following words and phrases 

as used in this Act, unless a different 

meaning Is plainly required by the context, shall have the following meanings: 

” 

. . . 

"(6) 'Member' shall 

er or auxiliary employee 

membership of the System 

Section 3 of this Act. 

" . . . 

"(12) 'Beneficiary' 

mean any teachincluded in the 

as provided in 

shall mean any 

person in receipt of an annuity, a retirement allowance, OP other benefit as 

provided by this Act." 

Section 3 of Article 2922-l designates 

those persons Included In the membershl of the 

Teacher Retirement System. Subsection P 5)(c) of 

Section 3 then provides as follows: 

"Should any member In any period 

of six (6) consecutive years after becoming a member be absent from service 

more than five (5) consecutive years, 

OP should he withdraw his accUmUlated 

contributions, or should become a beneficiary or upon his death, he shall 

thereupo: cease to be a member; pro- 
Mrs. B. B. Sapp, page 4 (v-1289) 

vided, however, that any member who 

has twenty-five (25) years of creditable servle in Texas may leave the 

servlceprlor to attaining the age of 

sixty (60) years and continue as a 

member of the Teacher Retirement System by not withdrawing his accumulated 

contributions, . . ." 

The State Board of Trustees of the Teacher 

Retirement System of Texas was created by the Legislature to administer the Retirement System established 

under Article 2922-1, V.C.S., pursuant to Section 48a, 

Article III, Constitution of Texas. It being a creature of statute, power lies Inherent In the Legislature 

to provide by law for the selection and qualifications 

of the membership constituting that Board. 

op. v-219 (1947). 

Att'y Gen. 

In Section 6 of Article 2922-1, provision 

is made for a Board of six trustees. 

(d) R 

Subsection (2) 

rovides that three of the trustees shall. be 'members of the Retirement System. B 

visions of Section 3, subsection (5 T 

virtue of the pro- 

(c) and Section 1, 

subsections (6) anti (12) of Article 2922-l it Is 

clear that a "beneficiary" under that Act is not a 

"member" of the Teacher Retirement System. 'Eeneficlary" is defined to include any person In receipt of 

of a retirement allowance. Therefore any teachermember trustee on the Board of Trustees who makes application for retirement benefits and Is awarded and 

receives a retirement allowance ceases to be, upon 

receipt thereof, a member of the Retirement System. 

He then becomes a beneficiary of the System, and, 

as such, has lost his former status as a member. 

Clearly, membership in the Retirement System is a prescribed qualification as to ellgiblllty 

for nomination and appointment for the trustee offices covered by subsection (2)(d) of Section 5. Does 

the statute also mean that membership in the System 

is a necessary qualification to hold the offlce to 

which one has been lawfully nominated and appointed? 

The requirement in subsection (2)(d) that 

nthree (3) of the trustees shall be members of the 

Retirement System" is clear and unambiguous. It 

states a positive qualification requirement. It 
. . 

Mrs. B. B. Sapp, page 5 (V-1289) 

presaribes, in substance, that each of such trustees 

shall be members of the Retirement System as a necessary qualification for holding the office, as well as 

a necessary qualification for their eligibillty to 

nomination and appointment thereto. To conclude that 

membership In the System Is necessary only to establish~eligibil.ity for nomination and appointment to 

the office Is to read Into the express qualification 

requirement a restriction on Its application at 

variance with the clear mandatory pronouncement. 

We think the applicable rule is stated in 

42 Am.Jur. 912, Public Officers, Sec. 41, as foll.ows: 

"Eligibility to public office Is of a 

continuing nature and must exist at the 

commencement of the term and during the occupancy of the office. The fact that the 

ca~ndicate may have been qualified at the 

time 01 *rrs election Is not sufficient to 

entitle him to hold the office, If at the 

time of the commencement of the term or 

during the continuance of the incumbency 

he ceases to be qualified.n 

For cases supporting this rule, see Annotation, 88 

A.L.R. 812, 828, and State ex rel. Olson v. Langer, 

65 N.D. 68, 256 N.W. 377 (1934). 

But conceding, for discusslon~s sake only 

that the law Is ambiguous in this respect, it ought 

to be interpreted in the light of legislative purpose or intent, where that can be ascertained. We 

conceive that this purpose and policy is to eetablish and guarantee representation of the members of 

the Retirement System on the State Board of Trustees 

of that System in the manner and to the extent therein provided. Such teacher-members representatives 

are selected from the nominees of the members of the 

Retirement System itself. The law so provides. They 

are peculiarly familiar by reason of their actual 

membership in the System with the needs and welfare 

of the members of that System. 

Incongruities arise if we conclude to the 

contrary, i.e., that membership in the System is a 

necessary qualification only for eligibllity for 

nomination and appointment to the Board. If a person lawfully appointed trustee of the Board is a 

member of the Retirement System on the day of his 
Mrs. B. B. Sapp, page 6 (V-1289) 

nomination or of 

ceases to become 

his appointment, but immediately 

a member of the System by reason 

of his becoming a beneficiary, he could serve his 

six years' term; and, if all three of such appointed 

teacher-member trustees chould happen to cease being 

members of the System during their respective terms 

of office, they would at111 constitute the member 

representation on the Board. Such contingencies are 

opposed to the policy of the statutewhose purpose is 

to require such three persons to be members of the 

Retirement System not only when nominated and appointed to the Board but during their terms of office. 

Accordingly, it is the opinion of this 

office that a trustee lawfully appointed and serving on the State Board of Trustees of the Teacher 

Retirement System under the provisions of Section 

6, subsection (2)(d), Article 2922-1, V.C.S., is 

not quallfed for membership on the Board when he 

ceases to be a member of the Teacher Retirement 

System and becomes a "beneficiary" and receives a 

retirement allowance under that System. 

SUMMARY 

I 

A member of the Board of Trustees 

of the Teacher Retirement System is not 

qualified for membership on the Board 

when he ceases to be a member of the 

Teacher Retirement System by becoming 

a "beneficiary' and receiving a retirement allowance under that S stem. 

(69 

Art. 

2922-1, Sec. 1, y$T;y; .and Sec. and 6, (l;?), 

Sec. 3, subset. 

subset. (2)(d), V.C.S. 

APPROVED: Yours very truly, 

J. C. Davis, Jr. PRICE DANIEL 

County Affairs Division Attorney General 

Jesse P. Luton, Jr. 

Revlewlng Assistant 

Everett Hutchinson 

Executive Assistant 

CEO:awo 

Chester E. Ollison 

Assistant