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## LAW **LJBRARY**

Mr. Frank H. Jaokson Executive Secretary Teacher Retirement System of Texas Lowich Building Austin, TCXPG 78701

Dear Mr. Jackson: Opinion No.M-647
Re: Several questions relative to rights and status of "facultymember" and former "faculty mcmbez" under the optional Retirement Program (Art. 2922-U. V.C.S.) and the Teacher 'Retirement

Law.

In your letter'requesting an opinion on the above captionedquestions,you set out the followingquoted information and questions.

"During the Regular Session of the 60th Texas Legislature, 1967, S.B. 292, providing an opticxm1 r(e+itement Program sor Cullcye a1d unlvervity facultymembers, was enacted. Section. 2(d) of S.B. 292 defines the term 'faculty member.' As a result of this legislation, many faculty members in the institutionsof higher education in Texas elected to participatein the Optional RetirementProgram in lieu of -TeacherBeklramont. Recently several persons who had previously elected the Optional Retirement.Proqram have changed to employment in a **new** position still in an institution of higher ~ducirtlsn.-buC.whi.zh am L-LO'

tongor b= **oenoid~rod ai)**  a 'facultymember. I As a result of these changes **of** positions,we present the followingquestions **for** your consideration: "1. Is a 'person

who was employed in a statesupported institutionof higher. educationas a faculty.member

in Texas and elected to become a member of the Optional RetirementProgram under thq.provisions

of Chapter 729 (S.B. 2921, 60th Texas Legislature,Regular Session, 1967 (2922-li, V.C.S.),Mr. Frank M. Jackson, page Z(M-647)

and who is later employed in.a state-supported institution of higher-education in a position classifiedas other than 'facultymember,' again requiredto become a member **of** the Teacher RetirementSystem as provided under Section 1.03 **of** the Teacher Retirement Law?
“2. If **your** answer to questionNO. 1 is in.the affirmative,

would said person, after five **years of**  **re** employment in the new position,be eligible to reinstate any account previously withdrawnfrom the Teacher Retirement System under the provisionsof Section 2.05 of the Teacher RetirementLaw?

” 3

. If your answer **to** questionNo. .l is in the affirmative, is said person eligible to **receive** credit with the Teacher Retirement System for any service during which time he was a member of the Optional Retirement Program?

“4. If your'answer.to questionNo. 1 is in the negative; is .said.person still eligible to participate in the Optional RetirementProgrameven though he.is no longer-elfgible.to.be.considered as a 'faculty member' as defined in Chapter 729 (S.B. 2921, 60th Texas Legislature,Regular Session, 1967?" The Teacher RetirementSystem of Texaeis governed by the followingprovision of the Education**Code:**

Article 292271.02, Vemon's.Civil Statutes, reads, in part as follows:

I((a) In this Act, unless the context requires a different definition: "(1) 'Retirement

System'means the Teacher Retirement system **of** Texas as defined in Section 1.01 of this Act: “(2) 'public school'means any educational institutionor organiaation in thio otatc which undct the laws of Texas.is entitled to be supportedwholly or partly by state, county, school district, **or** other municipal corporationfunds: "(3) 'teacher' means any person employed to render teaching service on a full-time, regular salary basis

-3094-**Mr.** Frank M. Jackson, page 3 (M-64'1)

. . . . by the-board of regents of any college or university, or by any other lega.ly constrtutedboard or agency of any public school;

**“ (4)**  'teaching

service'

means service rendered in organizedpublic educationin this state in professionalor business administration, or in supervision **or** instruction; "(5) 'auxiliary

employee'

means a person other than a 'teacher'employed..ona full-time,reqular salary basis by the boards or agencies listed in Subsection 7a) ,(3) of this section; II

. . . "(8) ‘ member’ means any teacher or auxiliary employee included in the membershipof,the Retirement System in accordancewith this Act; "(10) ‘servite’ means service as a teacher or auxiliary'employee in the public schools **of** this state, or in one **of** the other department,institutions,or agencies of the public school system of Texas, ,I

. ..'I(Emphasis

added.) Article 2922-1.03, Vernon's Civil Statutes, reads follows: as

"(4 All persons-who on the effective date of this act were members of the Teacher Retirement System of Texasshall continue as.memberssubject.to the provisions of this Act except as provided in Chapter 729 (SiB. 2921, 60th Texas Legislature,Regular Session, 1967. "(b) Every person who may be employed as a teacher or auxiliar e

y 0 ee in an branch or unit of the public school system of this state shall become a member **of** the Retirement System as a condition of his employment. This subsection shall not apply to requiremembershipof any person whoor. Frank M. Jackson, page 4 (M-647)

"(l)'hasheretofore, pursuant to authoriCy of **former** laws,

-executed and filed a waiver of membership in the"Retitement System;however, any such person may,'elect

to become a member at the beginning of any school **year,** but shall not be **entitled to**  'credit for prior service unless payments for the waived service are made as provided in Section **2.05 of**  this'Act;or "(2) was or may be for the first time-employed as a teacheror'auxiliary employee,and who at such time was or may be.more than 60 years of age; however, such person may'efect to.becomea member of the Retirement System as-.of'the

effectivedate of employment by notifying his employer and the State Board of Trustees within 90 days from the effective'date of employment; **Ol:** "(3Pelects to.partictpate in the retirementprogram provided b&re ,

Cha ter Regular Session, 1967 ,,Article 2922-li)" (Emphasisadded.) Article 2922-1.04, Vernon's Civil Statutes, reads, in part as 'follows: "(a)

. . . .

"(d) If the.membership of any member shall terminate; except by death or retirement, all his creditable service theretofore allowedor earned shall be forfeited. "(a) Should a person whose membership has terminated again become a member, he shall enter %he Retirement System upon the same terms as a person entering **service** for **tho** first timc.on that date and shall not.be entitled to credit for.prlorservice **or** other terminated service, unless it is reinstatedupon the terms and conditions set 6ut in Section 2.05 of this Act. " (Emphasisadded.) Article 2922-2.05,Vernon's Civil Statutes, reads as follows:'*(a)

Any teacher or auxiliaryemployeewho has executed a waiver **of** membershipin the Retirement System shall have the privilegeof electing to receive

-3096-Ur. Frank M. Jackson,page 5 (M-647)

full membership service credit,provided such toaohar or auxUiary employeeafter~becoming a.member of the RetirementSystem shall deposit all back deposits, assessments and dues which he would have paid **or** depositedhad.he been a member of the RstLreraent~~System during each ~of the years jaeactually taught or was employed as an auxiliaryemp1oyee.i.n the public schools-following the date on which he first became eligible for membershipin the.Retirement System, togetherwith interestfrom the.date each. amount was-payable at the rate of five percent per annum. One-half of the interest shall be credited to the state contributionaccount. "(by) Any person who terminatesor'has terminated membership in. the RetirementSystem by.withdrawal **of** deposits **or** by.absencefrom service shall..have the. privilege.of.reinstating such terminated

membership by renderlng.service for five subsequentconsecutive creditableyears and depositingthe.amount withdrawn plus membership.fees for the years during which membership was'terminated plus a reinstatement fee of two and one-half,percent

per annum from the date of withdrawal to date of redeposit. The reinstatement fee shall be cxedited to the-statecontribution account. "(cl The amounts to be depositedshall be determined fn each case by the State Roard **of** Trustees and no merson.shall be grant.oA

retitiomont

upon ouah service credits until the amount so determinedis paid iis.full." Under the provisionsof Article 2922:1.03(b) every person who is employed as a teacher or auxiliary employee, as defined in ArtioLc 2922.1.02of any institutionof higher education.isrequired to be metier of the "Teache.r Retirement System of Texas" unless they are exempt under the exemptions set out in.subsection (l), {2), or (3) of Article 2922-1.03 (b). Subsection (3) of Article 2922-1.03(b)states that membership in the,Teacher RetirementProgram is not required **of** these vho elect to participate**in** the Optional Retirement Program provided by Senate Bill 292, Chapter 729, 60th Texas Legislature, 1967 and codifiedas Article 2922-liwhich reads, in part, as follows:

0

. . . . “Sec. 2. **As** used in this act, unless the context otherwise requires:

-3097-W. Frank M. Jackson, Page 5 (M-547)

II

. . . * (b) gRetirementSystem' means the Teaoher Retirement **System** of **Texas as**  **defined under**  **the** provisions **of** chipter 470, Acts, Regular Session,.+th Legislature U37), ai3 amen&a.

O(f) .*Ootional

Retirement Program ’ amum the optional retirement 

### praqram created by this Act to provide fixed of varisble retirement annuities, including retirement unit 

### annuity Certfficat$s of-tarticipation P a r l a a r l+y

a r a nt b s r s .

"(ak There is hereby estahlfshed an Optional Retirement . **Program.** Partkipat$osi In the Optional ffe%iEUQ8Bt Program is in lieu-of active-metiershipin the Retirement System. The Governing-Boards **for** all institutions of higher education shall make available to all faculty members in their component institritions, agenoiea and units the Optional Retirement Program vhioh shall provide for the vesting. of benefit8 after **one** year,of;participation. "(b) All faculty members are'eligible to participate in the Opt'ZonaLPetirementProgram, subject to such rules as may be presoribed by the Governing Board of.the institution of.hfqher education at which they are employed.
*Sec. '4. .,..

-3098~.Mr. Frank M. Jackson,page 7 (H-647)

“Sec. 5. A facultymember (including one so employed on the effective date of this Act) who becomes eligible to participatein the Optional Retirement Program an6 who is a member of the Retirement System is hereby extended the option of continuing his membershipin the RetirementSystem or participating

in the OptionalRetirementPtoaram

l . . A facultymember exercising the option to Participatein the OptionalRetirementProgram as aforesaid shall not thereafter be eligible for membership in the RetirementSystem except as a limited member Bursuantto Se&ion I hereof unless such member ceases to be employedby an institution

of hzgher educationand becomes,employed by the Texas Public School System other.than in an institution

**of** higher education. **A** facultymember not exercisingthe option to participatein the Optional Retirement Program as aforesaid shall be seemed to have chosen to continuemembership in the RetirementSystem in lieu of exercisingsuch option to participate in the OptionaT-Ret-frement Program.

as amended (Article~2922-1, Vernon'sTexas Civil Statutes),upon applicationin writing as prescribed by the State Board of Trusteesand the applicable amounts shall be paid within twelve (121months from date such applicationis. received. Upon such withdrawal of funds, the faculty**mcmbcr** shall thereby' forfeit and relinquishall accrued rights as a member of the." -- _.- (Emphasisadded.1
In construingany statute , the first rule to be observed is that if the words of the statute are plain and definite, it must be interpretedin accordance with the maxim, "Then Law is Thus

-3099-Mr. Frank M. Jackson,page 8 (m-647)

Written, a mcuning ticaL Q 1LLrralinterpretation must be giveri to the words of the statute,unless .to do so will lead away from the.iatentand puzpose.of.the Act ns a uhole.and~ produce 

### an .absua. result.

Another rule of equal importance is that a statute must **be** interpretedso as.tomake operativein a practicalway the purpose of the Legislature , aa so as to secure to the class or classes of persons in whose behalf the statutewas enacted the benefits intended to be conferred. Also when statutes are in pui matoria and relatingto the same subject,they are to be taken together and so construed, in referenceto each other so that if practicable

, effect may be given to all provisions**of** the statutes being construed. (1947). State v.'Dyer,145 Tex: 586, 200 s.w.2d 813,

The legislature

has clearly shown by its enactment of Art&es 2922-1.01, 1.02, 1.03, 1.04, 2.05 aa 2922-15 that . it intends for every person employedas a teacher or as a full time auxiliaryemployee at an institution of higher education **Co** become **a member.**  of **the Rctircmcnt**  **System ao**  **a condition.**  **of** employment. :

The plain and unambiguous languageof Section 3 of Article 2922-U declares that participation in the Optional Retirement Program is in lieu. **of** activemembershipin the RetirementSystem ana is limited to.

Ufacultv

members"only as defined.in'Section2(a) of the same'statute:' AttorneyGeneralOpinion&I-315 (1968). The 1egislature"has clearly,defined'.a "faculty

**member ”**  **and** clearly restricted-the

Optional Xatiremsnt-Program to facultymembers by specific reference. throughout

the **body.of.the** bill and as set out in theabove quoted sections.of.the statute. The legislature

has thus created a special retirementpro**gram.for** a speciallydesignated **group** of employeesat institutions **of** higher education**who** are designated by name and definition as "faculty'members"

and the-provisions of said law can only apply to members~of~that

special group. Therefore,the're.strictions of ~Sect1on.S **am 6**  on rejornrng **tne Teacner**  xetlretintsystem would appl; only to those employees, of institutions **of** higher'education who are classified as a "faculty member". An employee of an institution **of** higher educationwho has bean classified as a "facultymember" but has changed to another employment which would no longer met the definitionof "facultymerberk as set out in Article 2922-li woula **therefore** no.**longer** be eligibleto participatein the optional RetirementProgram, and would be required to rejoin the Teacher RetirementSystem under the requirement of Atti~cle 2922-1.03 because.

they are no longer **under** the exemptionsset out in Article 2922-1.03b. However said former facultymember would have to meet the requirementsof Section 40aof Article IIIof the Texas ConStituti' in order to receivebenefits from the Teacher Retirement System.

. . . ..^or. Trank H. Jackson, page 9 (M-647)

In Attorney General Opinion M&l96 (1968) we held that the provis$oqe .of Section.7 of Article 2922-11 were unconstitutional **for** the following **.reasons:**
"Since'Artiole

2922-11does not provide or contemplate**that** a recipient**of the**  **Teacher** Retirement-System funa who **elects** to.participate in the Optional RetirementProgramwill. release to the State..the.'moneys contributed

by the State to the Optional Retirement **Program** to his credit, it follows that-so-long a5 a faculty.member is a recipientof the Teaoher.Retirement System Fund, he is not eligiblr~to'reooivo any benefit8 from the Optional Retirement-Program:He may easily cease to be a recipientofthe Teacher RetirementSystem fund by withdrawing. from the Teacher Retirement System and withdrawingfrom the fund all contributions he has made'thereto. See Section 48a of Article III **of** the Texas.Constitution: Section 6 **of** Article 2922-11. Of **course** iupon-the withdrawal**of** such cont.ributions **from** the fund, the’faculty member will thereby forfeit and relinquish all accrued tightn an a member of the Teacher RetirementSystem. "Since Section 7 **of** Article 2922-li attempts to **permit** the recipients **of** the Teach&r Retirement Fund to be-eligiblefor another State pension without 'such **other** state pension retirement**fund,** contributed & the State to.tho credit of the recipient,being: release&to the.Stateof Texas,' said section 7 violates the-abovequoted provisions. of,Sectiod '48a.of

Article I **of** the.Texas.Constitution and is, therefore, unconstitutional'and void because necessarilyantagonistic to the clear~constitutional provision. 1.2

Tex.Jur.2d 374, Constitutional Law, Sec. 30.".(Emphasis added.)

For the same reasok as set out BbOVe, we hold that the former facultymember would be.required.to cash in his optional RetirementProgram and withdraw his benefits under the Optional RetirementProgram; otherwisehe would not be eligible for benefits **under** the Teacher RetirementProgram, unless he released his benefits of the Optional RetirementProgram to the State of Texas .as a condition for,recelving benefits'

from the Teacher Retirement'System

as requiredby **Section** 4aa **of** Article III of the Texas Constitution.

-3101-Mr. Frank M. Jackson,page 16 (M-647)

The provision of Article 2922-1.04(e), and Article.. 2922-2.05would controlhis rejoiningthe Teacher Retirement System. Your first two questions are ankwered **in** the affirmative, subject to meeting the requirements of Section 48a. Article III of the Texas Constitution.

Your third question is answered in the negative for the **LSSPIUU 4~**  **set out**  In **Attorney rieneral**  **’ s**  VplnlOn M-AYb **that** +hC Legislature has provided for two separate and alternate retirement programs and,by the provisions**of** Sections 5 and 6 of Article 2922-li.andthe restriction of Section 48e of Article III of the Texas Constitutionthat there can be no credit allowed in the Teacher Retirement System for that period of,participation in the Optional RetirementProgram Furthermore, we find nothing in the statutes Involvedwhich would allow a person employed in a statesupported institutionof higher education as a facultymember to receive credit with the Teacher RetirementSystem for service while a mcmbcr of .the Optional Retirement **Program.**

The conclusions

we have reached above in answeringyour first three questionsmake it unnecessary to answer your fourth question.
SUMMARY
Article 2922-1.03, V.C.S., requires ail persons **employed** as teachers **or** auxiliary eau'loyeao

of an institution **of** higher education to be members of TeacherRetirementSystem of Texas unless they are members'ofOptional hetirement Program. Article 2922-11,

V.C.S., provides an Optional RetirementProgram for "facultymembers ” only as defined in said statute.’
Former "faculty

members"who no longer meet definitionof "faculty**member ”**  are required ta rejoin Teacher Retirement syetcm **PS provided**  **for** under Article 292,2-1.03, 2922-1.04and 2922-2.05 V.C.S. but said former faculty **members** ate not eligible to receive creditwith the Teacher Fbatirement~System **of** Texas for any service during which time they were members of the .Cptional Retirement Program. 4

General of Texas

-3102-Mr. Frank M. Jackson,page 11 (M-647)

Prepated by William J. Craig AesistantAttorney General
APPROVED: OPINIOrj CoMMITT.EE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman
W. 0. Shults Houghton Brownlee Arthur Sandlin Tom Sedberry
MEAD& F. GRIFFIN Staff Legal Assistant
ALFRED WALKER Executive**Assistant**
NOLA WHITE First Assistant

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