**Joas L.**  **El&IA**

**..wo- 0-u**  August 15, 1974
The Honorable DanKubiak House of Representatives Capitol Station **Austin.** Texas 78767 Opinion No. H- 371 Re: Whether former participant in Texas Teacher Retirement System, who declined at thetime to exercise option to participate .in Optional Retirement System, may upon return to teaching after educational absence elect to participate in the Optional System. Dear Mr. Kubiak:

The question is whether under certain circumstances a teacher who returns to teaching in Texas has an option **to** participate in the Optional Retirement System **or** is limited to participation in the Texas Teacher Retirement System.

The facts, as they have been presented, are that the teacher in question was a faculty member at a state supported institution ofhigher education during the school year from September.1971. through May, 1972. The Optional Retirement System had become available to faculty members ofthis institution onSept. 1, 1971andwe understand the teacher in question was advised ofher option to participate in the System. She refrained from exercising this option, electing to continue membership in the Texas Teacher Retirement System. We understand thatbecause the teacher lacked anadvanced degree her employment terminated at the end of the 1971-1972 school year and she withdrew all contributions she had made into the Teacher Retirement System. Thereafter she completed her advanced degree work, and in September,1973, she was again employed as a teacher in the same Texas state-supported institution ofhigher education in Texas.

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p. 1743. .

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The Honorable **Dan** Kubiak page 2 **(H- 371)** 

The controlling statute is Section 51.355, Texas Education Code (formerly **Art.** 2922-11, Sec. 5. V.T. C.S.) which provides **as** follows:

A faculty member whobecomes eligible to participate in the optional retirement program andwhois a member ofthe retirement system is hereby extended the option ofcontinuing his membership in the retirement system or participating in the optional retirement program **as** hereinafter set forth. A faculty member whois eligible toparticipate in the optional retirement program on the date the optional retirement program becomes aailable at the institution ofhigher education atwhich he is employed, nolater thanthe 1st day ofAugust ofthe calendar **year** following thedate onwhich the optional retirement program becomes available at the institution ofhigher education atwhich he is employed, shall elect toparticipate or not to participate inthe optional retirement program. A faculty member whobecomes eligible to participate in~the optional retirement program subsequent to the date onwhich the optional retirement program becomes available at theinstitution ofhigher education atwhich he is employed shall make such election within 90 days following the date onwhich he becomes eligible to participate in the optional retirement program. A faculty member exercising the option toparticipate in the optional retirement program shall notthereafter be

. eligible for membership in the retirement system unless he ceases to be employed bythe Texas Public School System other than in an institution ofhigher education. A faculty member not exercising theoption to participate in the optional retirement program shall be deemed tohave chosen to continue membership inthe retirement system inlieu of exercising the option to participate inthe optional retirement program. (emphasis added.)

p. 1744. l . . The Honorable DanKubiak yge 3 (H-371)

We presume that the teacher inquestion duringher original employment and at the present time has qualified as a “faculty member” for purposes ofSection 51.355, Texas Education Code. Shewas eligible to participate in the Optional Retirement System during her original **tenure** in 1971-1972 if she exercised her option on or before August first, 1972. Clearly the explicit language ofSection 51.355 provides for only one election, not a series of elections, regardless ofthecircumstances.

The Optional Retirement Act has been amended several times since the issuance of Opinion No. M-1027 (1971)construing the **statute,** (then Article 2922-R) as permitting **an** election only once. (Inaddition to the repeal and codification in 1971referred to previously herein, see **Acts 1973,**  63rd Leg., p. 1368, ch. 521). The Legislature could have provided for a series of elections buthas not done SO.

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It is also noteworthy that the Legislature has provided for re-instating membership and service credits in the Teacher Retirement System after an absence (see particularly Sections 3.25 and 3.26, Texas Education Code) and even for retaining membership in either of the retirment systems during educational leaves, (see Sets. 51.101 through 51.108, Texas Education Code); These provisions demonstrate legislative awareness in this area. Therefore the absence ofprovisions for more than one election forces the conclusion that only **one** opportunity to make an election between retirement systems was intended and that such an election, once made during the prescribed period, is considered binding onthe individual teacher.

This construction of the statutory scheme draws further support from the provisions ofSection 51.355 dealing withtheconverse situation where the faculty member initially elects to participate inthe Optional Retirement System. The **statute** provides that I’

. . . A faculty member exercising the option to participate in the optional retirement program shall not thereafter be eligible for membership in theretirement system unless he ceases tobe employed byan institution ofhigher education and becomes employed **by** the Texas Public School System other thaninan institution ofhigher education. ” Had the teacher inquestion opted in 1971-1972 toparticipate in the Optional Retirement System it would appear

p. 1745The Honorable DanKubiak page4 (H-371) ’

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that she would be boundbythat election uponher return toteaching. By the explicit language of Section 51.355 she would have been ineligible for membership in theTeacher Retirement System and no second election would have been available. Logically her election notto participate and thereby to remain in the Teacher Retirement System wouldbejudicially construed as binding onher. Inour opinion she would notbe held entitled toa second election. SUMMARY Section 51.355, Texas Education Code, affords an opportunity for afaculty member to elect participation in the Optional Retirement System and **a** faculty member **who** fails to exercise theoption when first available does nothave a right **to**a second opportunity to exercise that option uponreturning to teaching inTexas after terminating previous employment and leaving the state to secure anadvanced degree. Very truly **yours,**

/JL!kb JOHN L. HILL Attorney General ofTexas

irst Assistant

DAVID M. KENDALL, Chairman Opinion Committee

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