Hon. B. B. Sapp Director and Executive Secretary Teacher Retirement System of Texas Austin, Texas OpinionNo. 

### V-366

Dear Mrs. #SOP: Re: V

ii rlltlity

of rule of !acherRetirement dxm ooncernl= ,*ibility of em- .oyrre of State eleeImynarj3.n8tltutions Imembership in the ,aehepR8tfiement ratem.

We referherein to your lott#r 0s recent d8te acbmowleUgeaby the Attorney General on &gust 3, 1947, from which we quote a8 follows:

“Oa july 23rU the Beard ef Tru8tiea OS the Teacher Retirement Sfstsm Puleb thrt a8 of September I, 1947, those employeesOf’iState Elrramrynary ShnrtLtutlon8 who aremembers of the Teacher Retirement Systufi cont!f.nue

tQ be conalaerea aa eligible ror mMshi9 in the Teacher Retirement 8ygstem an8 **be P**  **tained** as membdrs of the Taacher Retlremant 8 y8terp a8 long is thay oacupf a porlttenin 84y Btate Eleemosynary rOstitutiend&&k ~88 orn8Zdered
an eligible position for 

### nemberclhlpII&the Teacher Retirement Syst8m prior t@ $I$tember 1, 1947; and, any employee of a St*te tieemosye nary Institutionbegi- w@.s rzit for the first tim(,

after (Ieptember

1, &# 7, be conr slaarea aa eLiglbla for me&w?aWp in the Teacher Retirement Systrm if saeh emplOp ia Bctivrlr engaged in teaching of teaCh%ng; rO&, if ruch tul@bgae In active teaching he shallnot be o?nsidered eligible for membership in the TeaclierRetirement Bljstem.Hon. B. B. Sapp - Page 2 (V-366)

"Thisrulewas passed after the State Employees'Retirement Systemwas authorized. The Board of Trusteeswould like to have your opinionrelative to their authority for passing saidrule determining eligibility of employeesof State Eleemosgnarg Institutionswith reference to the Teacher Retirement System subsequentto September 1, 1947.

. . .n
Article 2922-1, Section 1, par. (6), V.C.S., defines "member" In the Teacher Retirement System as any teacher included in the membership of the System as provided in Section 3 of this Act. Article 2922-1, Section 1, par. (3), defines "teacher"as used In Section 3 as follows:

“(3) 'Teacher'shallmean a person employed on a full-time,regular salarybasis by boards of common school districts,boards of independent schooldistricts, county schoolboards,Retirement Board of Trustees, State Board of Education and State Department of Education,boards of regents of collegesand universities,and any other legally oonstltutedboard or agency of an educational Institution or organization supstruotion, in publicschools as defined in ?3ubsectlon(2) of this SeCtiOn.” (Ihaphasis
ours)
Article 2666, V.C.S., providing for the creation of school districts for eleemosynary instltutlons, reacts:
'The State Board (of Education) is authorized to createnew school districts at such of the severalEleemosynary Institutions of this State, incluaing the State Orphan Home, or at any and all Orphanhomesihi. 0. B. Sapp - Page 3 W-366)

or like institutions that may be established by any Fraternal organization, or at any Institution for dependent or aellnquent childrenmaintained by any County in this State; provided, that the number of childrenwithin the scholasticage in each instancebe suf’flclent to ~justlfy such action. The terrltarlal limit8 in each case shallbe co-extensivewith the property lines of the instltutlooa.”

ana Article 2667 provides that such school districts, when created,-.&allbe controlled.as Sar as possible by the law pertaining to inae endent school b;tstrtctsi dr&gg v. Hill, 58 S.W. (26 7 150. Such school districts cri%ted In the ele&mosynary institutions of this State E&B ~@ubjeotto and entitled to the benefits of th& %WWhsr ;RetlrementSystem of Texas.

353i ({b be’coipllei in Vernon:s Civil S&%e~‘~s%tiB B 168 Acts 1947 50th Leg

cl& 6228a) providing for the establishmentof the EQP947, guwfiaee’ that a %embBr” shallmean anfremployei &a$eeki Retirement System of Texas as of September 1
ihuluded In the msmbership of the System as provided in Be&Ah 3 of this Act, (Art. 6228a, Sea. 1, par. E). Artilc,le

6228a, Sec. 3, par. A, reads in part as follows:

"Sec. 3. The membership of said Retirement System shallbe composed as fallows: 

### “A. All persons who are employees on :the date as of which the Retirement System Is established shallbecome members as of that date as a condition of their em loyment ; unless within a period of ninety (90 P ,days after September 1, 1947, any such employee shall file with the State Board of TrUSteeS
on a form prescribedby such Board, a notice of his electionnot to be covered ii~the membership of the System and a duly exebuted waiver of all present and prospective benefits which would otherwise Inure to him on account of his participation in the Retlremeht System. The following persons shall, however, not be eligible for participation in the Retirement System:Hon. B. B. Sspp - Page 4 

### (V-3661

“1.

. . . any person who is covere6be the TeachersRettiQl88nt:_Qxstea.

. .‘*(J&uphasis ours)

and Section 1, par. C, of the BmployeesRetirementAct defining “empl8yee”as used therein, pr8vldes that “employee” shallnot include any personwho is cover84 by the T8acherRetirement System of the State of Texas,

It is, therefore, cleaply and speclficall~ provided that any State employee who Is coveredby the TeacherRetirement System shall not be eligible 

### for membership in the *ployees’ Retlroment System.

The provisions of the

### rule passed by the TeaeherRetirement loaN on July 23, 1947, hereinabove quoted, insofar as it pertains to employees of Stiate EleemosJnory Institutionswho 

### are membersof the Tucher Retirement System prior to and on September &, 

### 1947, is, in all respects **proper** and legal ln the light ef the above-quoted statutes.

In contemplationof the establishmentOS the Employees RetirQBent System as of September 1, %$+7, the TeacherRetlPament Board also provided in it,8 rule passsd on July 

### 23, 1947, that any employee of a State EleemosJnUSJ Institutionbeginning e.mployment for:the first time after September 1, 1947, be consideredas eligible for membership in the TeacherRetirement Systen if such employee Is actively 

### -aged In teaching
or supervisionof teachers; anU if such employee is not engaged in active teaching,he shallnot be csnslderea ell(ible for membership In the TeacherRetlrement System. Ve find no conflict in the provisions of this rule with either the Teacher RetirementAct or the EmployeesRetirement Act, and are of the opinion that ample authority rests in the Board OS Trustees of the TeacherRetirement Systu8 to promulgate same by virtue of the provisions of Section 1, par (3),Article 2922-1,v. c. 3.

SUMMARY

The rule passea by the Board oS~Trustees of tke Teacher Retirement System of Texas on July 23, 1947, relative to the eligibility of e8~loysrs of the State Eleemosynary Institutions to ne~bershlp ia theSm. 0. b. sapp - ~rig;e 

### 5 (V-366)

Teacher Retirement System after September 

### 1, $947, when the Bployess 

### Retirement System may be established, is le@:sl and proper, being in accordancewith the provl8lons of lCrtic1e 2922-1, Sec. 1, par. and Article 6228a Sec. 1, iii?: ~%:'~,c. 

### 3,par. A, V.&L
Very truly yours

ATTORNRY GBtIpuL OF m



## cm:egt;ajm -I Chester,E.Olllaon Assistant