~F,A~ORNEY GENERAL
0F TEXAS

Mrs. B. B. Sapp,Director and ExecutiveDirector TeacherRetirement System of Texas Austin, Texas

Dear Mrs. Sapp: OpinionNo. O-5097 Re: Whether retired member may return to teaching profession.

We have received your letter of February 9, 1943, which we quote in part as follows:

"Inaccordancewith Section 

### 5, Subsection 

### 7 of the TeacherRetirement Law of Texas, should a member elect to receive his membershipannuity fn an annuity payable throughout life,may said member legally return to the teachingprofession?
"If so, prescribeprocedure for the Executive Secretary of the TeacherRetirement System of Texas to followwith referance to said cases."

In effect,you ask whether a member retired for years of servicemay be employedas a teacherunder the terms of the Act.

In the outset, let us say thatwe believe that the purpose of the citizens of Texas in voting Section 

### 48a,Article III, Constitutionof Texas, which authorized the establishment of the Teacher Retirement System, and of the Legislature inpassing the TeacherRetirement Act (Article2922-1, Vernon's Annotated Civil Statutes),was two-fold: first, to reward and protect thosemembers of an honoredprofessionwho have given years of service toward the instructionof Texas youth; second, to insure that our public educational system will be maintained on the highest level by relieving from duty those members of the professionwho because of age and infirmity can no longer adequatelyrender the vigorous services required of them by such educational system.

We will now proceed to construe the Act with these purposes inmind.

Section 

### 3 of the Retirement Act provides that all personswho were teachers as of the date the Retirement Sgstern was establishedbecame members thereof as a condition ofMrs. B. B. Sapp, page 2 O-5097

their employmentunless such teacherwithin a period of 90 days after September 1, 1937, filed with the State Board of Trustees of the Retirement System a notice of his election not to be a member. Said section also provides that beginning September 1, 1938, and thereafter,any teacher teaching for the first time in Texas shallbecome a member of the Retirement System as a condition of his emnlosment. In other words, under such provisions, except for those teacherswho filed a notice as above described,membership in theRetirement System is a condition of his employmentas a teacher. It is settled that the State of Texas may prescribe thewlifications of teachers and may name the conditionsunder which the privilege of teachingmay be exercised. We quote following from the case of Marrs v. Matthews, 270 S. W.* (W.E. ref.): the 586
"Thepublic free school system in this State is largely the creature of the statute. While the Constitutiondirects its establishment,and makes provision for its support and maintenance, the organicdetails of the system are leftmainly to the Legislature. To that body is committed the power to providewhere public schools shallbe located, how they shallbe controlled and managed, the selection of subjects that shall be taught, and to fix the qualifications of thosewho may teach. While any citizenmay have the inherentright to teach a private school for the instructionof the young, no one may claim an inherentright to teach in the public free schools. Since the State sup- -. ,. , .- - pLies tne revenue to support sucn 3cnooLsana pay 'bhesalariesof teachers, the State may iustls claim the right to orescribe the qualifications of thosewho teach. and name the conditionsunder which the privilege of teachingmay be exercised.

"A certificate to teach in the public schools ismerely a license granted by the State, and is revocable by the State at its pleasure. Baldacchi
v. Goodlett (T:ex. Civ.App.) 145 S.W. 325; Stone V. Fritts 169 Ind. 361, 82 N.E. 792, 15 L. R. A. (N.S.) 1149, 14 Ann. Cas. 295; 24 R.C.L. 613. It isnot a contract protectedby the due process provisions of either the State or the Federal Constitution * * * *' (Emphasisours)
This department held in a letter opinion,dated September 22, 1937, toHonorable Mortimer Brown, Executive Secretary of the TeacherRetirement System, that once aMrs. B. B. Sapp, page 3 O-5097

teacherbecomes a member of the Retirement System, he cannot withdraw frommembership in such System except to cease belng a teacher, to dle, to be retired with a disabilitp benefit, or to be retired on account of age with such annuity or other benefit as is selectedby such teacher. These conclusions were affirmed by our OpinionNo. o-1530.

An examination of the RetirementAct fails to disclose any provisionauthorizing, or evenmentioning the reentering of the teachingprofession by a member retired for service. On the other hand, there are suchprovisionswith respect to beneficiariesunder 60 years of age who were retired on account of disability, and when they are so re- .stored,their disabilit~y allowance is stopped. Subsection -,_ 5 of Section 5, Article 2922-l. The restoration to active service is limited to disability beneficiariesunder 60 Tears of age. Subsection 4 of Section 5 provides that Upon retirement for disability a member shallreceive a service retirement allowance if he has attained the age of sixty (60)years; * l *." Otherwisehe receives a disability retirement allowance. Where a person under 60 is retired on a disability allowance, such allowance is converted into a serviceallowance when he reaches 60 years of age. Certainly, the limiting of restoration to active service to disability beneficiariesunder 60 years of age manifests the legislative intent that retiredmembers over 60 years of age cannot be so restored. No member can be retired for service until he has attained the age of 60 years. It is clear, therefore, that a member retired for servicemay not resume active service.

As we have heretoforementioned, membership in the Retirement System is a condition of a teacher's employment. If such a retired teacherwere allowed to resume teaching, there would be the incongruous situation of one person's receivingboth a salary as an active teacher and also retirement benefits as a retired teacher. This obviouslywas not the intent of either the people or the Legislature of Texas. The word retire is clear inmeaning. Itmeans to withdraw. A definition of the word appearing inWebster'sNew InternatlonalDictionary (Unabridged,2nd Ed.) is: "TOdesignate as no longer qualified for active service; to place on the retired list * * *.'

It Is our opinlon that the fact that in the Retirement Act there are no provisionsauthorizingmembers retired for service to leave their retirementand re-enter the teaching profession,whereas there are such provisionswith respect to disability beneficiaries, is as effectiveas a positive provision in the Act expressly forbldding the same. This, the Legislature has the power to do; this, in our opinion, it^

Mrs. B. B. Sapp, page 4 O-5097

has done. You are advised, therefore, that your first question is answered in the negative.

Our view is strengthenedby the followingprovision of Subsection 4, Section 4 of Article 2922-l:

"Whenmembership ceases, such prior service shallbecome void. Should the employeeagain become a member, such a person shall enter the System as a member not entitled to prior service credit except,

as provided in Section 5, zubzection (5),paragraph (b) of this Act." Section 5, Subsection (5), paragraph (b)deals with a person retired on account of dizabilitywho,is restored to active serviceand provides that zueh a member may be oredited with the prior service certificate he had at the time of his disabilityretirement. Under Subsection 4 of Section 4 any person-who again b~ecomes a member, except a personwho was retired on account of dizab~ility, enters az a member not entitled to prior service. It follows,.therefore,that ifwe should hold that a member retired because of servicemay again become a member, he would become a member not entitled to any prior service. He would forfeit all his prior service credit. Therefore, before any such member would again be entitled to serviceretirement benefits, he would have to teach until he had accumulated 20 years of creditable service. (Section5, Subsection 1, Article 2922-l). But as we have saidbefore, it izour opinion that a person retired for servicemay not be re-employed as a teacher under the Act.

Our view is further strengthenedby~the fact that no provision ismade for the transfer of funds upon a return to active serviceby a member retired for service. Subsection 3 of SEction 8, relating to the MembershipAnnuity ReserveFund, provides in part as follows:'

'* * l * This Fund shallbe made up of transfers as follows: "(a) At the time of service or dizability retirement the accumulated contributions of a retiring teacher shallbe transferred from the Teach:er Saving Fund to the MembershipAnnuity Reserve Fund as reserves for the membership annuity purchasedby his contributions. "(b) An amount equal to the accumulated contributions of each retiring teacher shallbe tranzferred,upon service or disability retirement, from the State MembershipAccumulationFund as reservesMrs. B.B. Sapp, page 

### 5 O-5097

for an additionalmembership annuity equal to the membership annuity purchasedby the teacher.
"Transfersand payments from the Membership Annuity Reserve Fund shallbe made as provided in Section 

### 5, Subsection 

### (5)Paragraph (b) of this Act, upon the death,.restoration to active service or removal from the dIsabilitg list of a beneficiaryretired on account of disability."

You will notice that provision IKmaae for transfers and payments upon restoration of a beneficiaryretired for disability to active service. There Is no similarprovision with respect to members retired for service.

We think it clear and manifest that the Legislature intended that a person retired for service shallnot be reemployed as a teacher. Our answer to your first question renders unnecessary an answer to your secondquestion.
Very truly yours
ATTORNEYGENERAL OF TEXAS

By s/GeorgeW. Sparks George W. Sparks

Assistant
GWB/s/wc

APPROVEDFEB 

### 15, 1943 s/Gerald C. Mann ATTORNEYGENERAL OF TEXAS Approved OplnIon CommltteeBy s/BWB Chairman