Mrs. B. B. Sapp Director and Executive Secretary Teacher Retirement System of Texas Austin, Texas OpinionNo. V-1289

. Re: Legality ofmember of Board of Trustees of the TeacherRetirement System appointed underArticle 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~tatlonof 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 thesemembers "shall serve for terms of six years, or until their successorsare qualified."

In your request,~

you state that the Board of Trustees of the TeacherRetirement System has interpreted this provision tomean that If a member of the TeacherRetirement System Is nomlnated by themembers of the System and is appointed by the Governor and confirmedby the Senate, that personmay serve for a term of six years, even though he accepts retirementbenefits under the Teacher Retirement Law before the expiration of his term. You ask whether this Interpretation is correct.
Section 6 ofArticle 2922-1,V.C S., as amended, Insofaras pertinent to thls opinion,provides as follows:

"(1)The general administrationand responsibilityfor the proper operationMrs. B. B. Sapp, page 2 (V-1289)

of the Retirement System and for making effective the provisions of theAct are hereby vested In a State Board of Trustees

. . .
" 2) six (6I The Board shall consist of

trustees,as follows: (a)The State Life InsuranceCommissioner, 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 bemembers of theRetirement System and shallbe nominated by the members of the-RetirementSystem 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 immediatey after theyhave 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-membersbienially by popular election ofmembers of the Retirement System, from which the Governor shall appoint onemember to the State Board of Trustees; saidmember shallbe subject to confirmation by two-thirdsvote of the State Senate. The members so appointed shallMrs. B. B. Saw, page 3 (v-1289)

serve for terms of six (6)years, or until their successorsare qualified.

. . . "(3) If a vacancy occurs in the office of a trustee, the vacancy shall be filled for the unexpired term In the samemanner as the officewas preVIOUS~Y filled.
"(4) The trustees shall serve without compensation,

. . .' (Emphasis added throughout opinion.)
Section 1 of Article 2922-lprovides as follows:
"The following words and phrases as used in thisAct, unless a different meaning Is plainly required by the context, shall have the followingmeanings:

”

. . . "(6) 'Member'shall er or auxiliary employee membership of the System Section 3 of thisAct.
"

. . . "(12) 'Beneficiary'mean any teachincluded in the as provided in

shallmean any person in receipt of an annuity, a retirement allowance, OP other benefit as provided by thisAct."
Section 3 of Article 2922-l designates those persons Included In the membershl of the Teacher Retirement System. Subsection P5)(c) of Section 3 then provides as follows:

"Should any member In any period of six (6) consecutiveyears after becoming a member be absent from service more than five (5) consecutiveyears, OP shouldhe withdrawhis accUmUlated contributions,or shouldbecome 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 memberwho has twenty-five (25)years of creditable servle in Texas may leave the servlceprlor to attaining the age of sixty (60)years and continueas a member of the TeacherRetirement System by not withdrawinghis accumulated contributions,

. . ."
The State Board of Trustees of theTeacher Retirement System of Texas was createdby 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 provideby law for the selectionand qualifications of the membership constitutingthat Board. op. v-219 (1947). Att'y Gen.

In Section 6 ofArticle 2922-1,provision ismade for a Board of six trustees. (d)R Subsection (2) rovides that three of the trustees shall. be 'members of theRetirement System. B visions of Section3, subsection (5T virtue of the pro- (c)and Section 1, subsections (6) anti(12) of Article 2922-l it Is clear that a "beneficiary"under thatAct 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 retirementbenefits 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 losthis former status as a member.

Clearly, membership in the Retirement System is a prescribed qualificationas to ellgiblllty for nomination and appointment for the trustee offices coveredby 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 lawfullynominated 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 statesa positive qualificationrequirement. It. . Mrs. B. B. Sapp, page 5 (V-1289)

presaribes, in substance, that each of such trustees shallbe 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 appointmentto the office Is to read Into the express qualification requirement a restriction on Its applicationat variancewith the clearmandatory 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 continuingnature and must exist at the commencementof the term and during the occupancy of the office. The fact that the ca~ndicatemay have been qualifiedat the time 01 *rrselection Is not sufficient to entitlehim to hold the office, If at the time of the commencementof the term or during the continuance of the incumbency he ceases to be qualified.n

For cases supporting this rule, seeAnnotation, 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 legislativepurpose or intent,where that can be ascertained. We conceive that thispurpose 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-membersrepresentatives are selected from the nominees of themembers 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 themembers of that System.

Incongruitiesarise ifwe conclude to the contrary, i.e., thatmembership in the System is a necessary qualification only for eligibllity for nomination and appointment to the Board. If a person lawfullyappointed trustee of the Board is a member of the Retirement System on the day ofhisMrs. B. B. Sapp, page 6 (V-1289)

nomination or of ceases to becomehis appointment,but immediately

a member of the System by reason of his becoming a beneficiary,he could servehis sixyears' term; and, if all three of such appointed teacher-membertrustees chouldhappen to ceasebeing members of the System during their respective terms of office, they would at111 constitute themember representation on the Board. Such contingenciesare opposed to the policy of the statutewhosepurpose is to require such three persons to be members of the Retirement System not onlywhen nominated and appointed to the Board but during their terms of office. Accordingly, it is the opinion of this office that a trustee lawfullyappointed 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 Systemby becoming a "beneficiary'and receiving a retirement allowanceunder that S stem. (69 Art. and (l;?), 2922-1, Sec. 1, y$T;y; .andSec. 6, Sec. 3, subset. subset. (2)(d),V.C.S.

APPROVED: Yours very truly,

J. C. Davis, Jr. PRICE DANIEL CountyAffairs Division Attorney General

Jesse P. Luton, Jr. RevlewlngAssistant

Everett Hutchinson ExecutiveAssistant

CEO:awo Chester E. Ollison Assistant