Joas L. El&IA 

..wo- 0-u 

August 15, 1974 

The Honorable Dan Kubiak 

House of Representatives 

Capitol Station 

Austin. Texas 78767 

Opinion No. H- 371 

Re: Whether former participant 

in Texas Teacher Retirement 

System, who declined at the time 

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 of higher 

education during the school year from September.1971. through May, 1972. 

The Optional Retirement System had become available to faculty members 

of this institution on Sept. 1, 1971 and we understand the teacher in question 

was advised of her option to participate in the System. She refrained from 

exercising this option, electing to continue membership in the Texas 

Teacher Retirement System. We understand that because the teacher lacked 

an advanced 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 of higher education in Texas. 

. 

p. 1743 
. . 

. . 

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 who becomes eligible to participate 

in the optional retirement program and 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 program as 

hereinafter set forth. A faculty member who is eligible 

to participate in the optional retirement program on 

the date the optional retirement program becomes aailable at the institution of higher education at which he 

is employed, no later than the 1st day of August of the 

calendar year following the date on which the optional 

retirement program becomes available at the institution 

of higher education at which he is employed, shall elect 

to participate or not to participate in the optional 

retirement program. A faculty member who becomes eligible to participate in~the optional retirement program 

subsequent to the date on which the optional retirement program becomes available at the institution of higher education 

at which he is employed shall make such election within 

90 days following the date on which he becomes eligible 

to participate in the optional retirement program. A 

faculty member exercising the option to participate in 

the optional retirement program shall not thereafter be . 

eligible for membership in the retirement system unless 

he ceases to be 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 shall be deemed to have 

chosen to continue membership in the retirement system 

in lieu of exercising the option to participate in the optional 

retirement program. (emphasis added.) 

p. 1744 
. l 

. . 

The Honorable Dan Kubiak yge 3 (H-371) 

We presume that the teacher in question during her original employment and at the present time has qualified as a “faculty member” for 

purposes of Section 51.355, Texas Education Code. She was 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 of Section 51.355 provides for only one election, not a series of elections, regardless of the circumstances. 

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. (In addition to the 

repeal and codification in 1971 referred to previously herein, see Acts 

1973, 63rd Leg., p. 1368, ch. 521). The Legislature could have provided 

for a series of elections but has not done SO. 

. 

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 of provisions 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 on the individual teacher. 

This construction of the statutory scheme draws further support 

from the provisions of Section 51.355 dealing with the converse situation 

where the faculty member initially elects to participate in the 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 the retirement system 

unless he ceases to be employed by an institution of higher education and 

becomes employed by the Texas Public School System other than in an 

institution of higher education. ” Had the teacher in question opted in 

1971-1972 to participate in the Optional Retirement System it would appear 

p. 1745 
The Honorable Dan Kubiak page4 (H-371) 

’ . 

. . . 

that she would be bound by that election upon her return to teaching. By 

the explicit language of Section 51. 355 she would have been ineligible for 

membership in the Teacher Retirement System and no second election 

would have been available. Logically her election not to participate and 

thereby to remain in the Teacher Retirement System would be judicially 

construed as binding on her. In our opinion she would not be held entitled 

to a second election. 

SUMMARY 

Section 51.355, Texas Education Code, affords 

an opportunity for a faculty member to elect participation in the Optional Retirement System and a 

faculty member who fails to exercise the option 

when first available does not have a right to a second 

opportunity to exercise that option upon returning to 

teaching in Texas after terminating previous employment and leaving the state to secure an advanced 

degree. 

Very truly yours, 

/JL!kb 

JOHN L. HILL 

Attorney General of Texas 

irst Assistant 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1746