. 

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 

"faculty member" 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 

captioned questions, you set out the following quoted 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 

faculty members, 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 

institutions of higher education in Texas elected 

to participate in the Optional Retirement Program 

in lieu of -Teacher Beklramont. 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 'faculty member. I As a result of these changes of 

positions, we present the following questions for 

your consideration: 

"1. Is a 'person who was employed in a statesupported institution of higher. education as a 

faculty.member in Texas and elected to become a 

member of the Optional Retirement Program 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 classified as other than 

'faculty member,' again required to become a member of 

the Teacher Retirement System as provided under Section 

1.03 of the Teacher Retirement Law? 

“2. If your answer to question NO. 1 is in.the 

affirmative, would said person, after five years of reemployment in the new position, be eligible to reinstate 

any account previously withdrawn from the Teacher Retirement System under the provisions of Section 2.05 of the 

Teacher Retirement Law? 

” 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 question No. 1 is in the 

negative; is .said.person still eligible to participate 

in the Optional Retirement Program even 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 Retirement System of Texaeis governed 

by the following provision 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 

institution or organiaation in thio otatc which undct 

the laws of Texas.is entitled to be supported wholly 

or partly by state, county, school district, or 

other municipal corporation funds: 

"(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 constrtuted board 

or agency of any public school; 

“(4) 'teaching service' means service rendered 

in organizedpublic education in this state in 

professional or 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 membership of,the Retirement System 

in accordance with 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.members subject.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 y e 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 require membership of any person who 
or. Frank M. Jackson, page 4 (M-647) 

"(l)'has heretofore, 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.become a member of the Retirement 

System as-.of'the effective date 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 retirement program 

provided b &re Cha ter , 

Regular Session, 1967 ,,Article 2922-li)" (Emphasis added.) 

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 allowed or 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.prlor service or 

other terminated service, unless it is reinstated upon 

the terms and conditions set 6ut in Section 2.05 of this 

Act. " (Emphasis added.) 

Article 2922-2.05, Vernon's Civil Statutes, reads as 

follows: 

'*(a) Any teacher or auxiliary employee who has 

executed a waiver of membership in the Retirement 

System shall have the privilege of electing to receive 

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

full membership service credit, provided such 

toaohar or auxUiary employee after~becoming a.member 

of the Retirement System shall deposit all back 

deposits, assessments and dues which he would have 

paid or deposited had.he been a member of the 

RstLreraent~~System during each ~of the years jae actually 

taught or was employed as an auxiliary emp1oyee.i.n the 

public schools-following the date on which he first 

became eligible for membership in the.Retirement 

System, together with interest from 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 

contribution account. 

"(by) Any person who terminates or'has terminated 

membership in. the Retirement System by.withdrawal of 

deposits or by.absence from service shall..have the. 

privilege.of.reinstating such terminated membership 

by renderlng.service for five subsequent consecutive 

creditable years and depositing the.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-state contribution account. 

"(cl The amounts to be deposited shall 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 determined is paid 

iis.full." 

Under the provisions of Article 2922:1.03(b) 

every person who is employed as a teacher or auxiliary employee, 

as defined in ArtioLc 2922.1.02 of any institution of 

higher education.is required 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 Retirement Program 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 codified as Article 2922-li which 

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) gRetirement System' 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+ay r a ntb sr s. 

"(ak There is hereby estahlfshed an Optional Retirement . 

Program. Partkipat$osi In the Optional ffe%iEUQ8Bt Program 

is in lieu-of active-metiership in 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'ZonaLPetirement Program, 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 faculty member (including one so 

employed on the effective date of this Act) who becomes eligible to participate in the Optional Retirement Program an6 who is a member of the Retirement System is hereby extended the option of continuing his membership in the Retirement System 

or participating in the Optional Retirement Ptoaram 

l . . A faculty member exercising the option to 

Participate in the Optional Retirement Program as 

aforesaid shall not thereafter be eligible for 

membership in the Retirement System except as a 

limited member Bursuant to Se&ion I hereof 

unless such member ceases to be employed by an 

institution of hzgher education and becomes,employed 

by the Texas Public School System other.than in an 

institution of higher education. A faculty member 

not exercising the option to participate in the 

Optional Retirement Program as aforesaid shall be 

seemed to have chosen to continue membership in the 

Retirement System in lieu of exercising such option 

to participate in the OptionaT-Ret-frement Program. 

as amended (Article~2922-1, Vernon's Texas Civil 

Statutes), upon application in writing as prescribed 

by the State Board of Trustees and the applicable 

amounts shall be paid within twelve (121 months from 

date such application is. received. Upon such withdrawal of funds, the faculty mcmbcr shall thereby' 

forfeit and relinquish all accrued rights as a 

member -- of _.- the." (Emphasis added.1 

In construing any statute , the first rule to be observed 

is that if the words of the statute are plain and definite, it must 

be interpreted in accordance with the maxim, "Then Law is Thus 

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

Written, a mcuning ticaL Q 1LLrral interpretation must be giveri 

to the words of the statute, unless .to do so will lead away 

from the.iatent and puzpose.of.the Act ns a uhole.and~ produce 

an .absua. result. 

Another rule of equal importance is that a statute 

must be interpreted so as.to make operative in a practical way the 

purpose of the Legislature , aa so as to secure to the class or 

classes of persons in whose behalf the statute was enacted the 

benefits intended to be conferred. Also when statutes are in 

pui matoria and relating to the same subject, they are to be taken 

together and so construed, in reference to 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 employed as a teacher or as a full 

time auxiliary employee at an institution of higher education 

Co become a member. of the Rctircmcnt System ao a condition. of 

employment. : 

The plain and unambiguous language of Section 3 of Article 

2922-U declares that participation in the Optional Retirement 

Program is in lieu. of active membership in the Retirement System 

ana is limited to. Ufacultv members" only as defined.in'Section2(a) 

of the same'statute:' Attorney General Opinion&I-315 (1968). 

The 1egislature"has clearly,defined'.a "faculty member” and clearly 

restricted-the Optional Xatiremsnt-Program to faculty members 

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 retirement program.for a specially designated group of employees at 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 xetlretint system 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 education who has bean classified as a "faculty member" 

but has changed to another employment which would no longer met the 

definition of "faculty merberk as set out in Article 2922-li woula 

therefore no. longer be eligible to participate in the optional 

Retirement Program, and would be required to rejoin the Teacher 

Retirement System under the requirement of Atti~cle 2922-1.03 

because. they are no longer under the exemptions set out in Article 

2922-1.03b. However said former faculty member would have to meet 

the requirements of Section 40aof Article IIIof the Texas ConStituti' 

in order to receive benefits 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 2922-11 does not provide 

or contemplate that a recipient of the Teacher 

Retirement-System funa who elects to.participate in 

the Optional Retirement Programwill. 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 recipient of 

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 

recipient ofthe Teacher Retirement System 

fund by withdrawing. from the Teacher Retirement 

System and withdrawing from 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 i upon-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 Retirement System. 

"Since Section 7 of Article 2922-li attempts 

to permit the recipients of the Teach&r Retirement 

Fund to be-eligible for another State pension without 

'such other state pension retirement fund, contributed 

& the State to.tho credit of the recipient, being: 

release&to the.State of Texas,' said section 7 

violates the-above quoted provisions. of,Sectiod '48a.of Article I 

of the.Texas.Constitution and is, therefore, unconstitutional'and void because necessarily antagonistic 

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 faculty member would be.required.to cash in his optional 

Retirement Program and withdraw his benefits under the Optional 

Retirement Program; otherwise he would not be eligible for 

benefits under the Teacher Retirement Program, unless he released 

his benefits of the Optional Retirement Program to the State of 

Texas .as a condition for,recelving benefits' from the Teacher 

Retirement'System as required by 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.. 

2922-2.05 would control his rejoining the 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.and the restriction of Section 48e of Article III of the 

Texas Constitution that there can be no credit allowed in the 

Teacher Retirement System for that period of,participation in the 

Optional Retirement Program Furthermore, we find nothing in the 

statutes Involved which would allow a person employed in a statesupported institution of higher education as a faculty member to 

receive credit with the Teacher Retirement System for service 

while a mcmbcr of .the Optional Retirement Program. 

The conclusions we have reached above in answering your 

first three questions make 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 Teacher Retirement System of 

Texas unless they are members'of Optional hetirement Program. 

Article 2922-11, V.C.S., provides an 

Optional Retirement Program for "faculty members” 

only as defined in said statute.’ 

Former "faculty members" who no longer 

meet definition of "faculty member” are required 

ta rejoin Teacher Retirement syetcm PS provided for 

under Article 292,2-1.03, 2922-1.04 and 2922-2.05 

V.C.S. but said former faculty members ate not 

eligible to receive credit with 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 

Aesistant Attorney 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 

-3103-