~F,A~ORNEY GENERAL 

0F TEXAS 

Mrs. B. B. Sapp, Director and Executive Director 

Teacher Retirement System of Texas 

Austin, Texas 

Dear Mrs. Sapp: Opinion No. 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: 

"In accordance with Section 5, Subsection 

7 of the Teacher Retirement Law of Texas, should 

a member elect to receive his membership annuity 

fn an annuity payable throughout life, may said 

member legally return to the teaching profession? 

"If so, prescribe procedure for the Executive 

Secretary of the Teacher Retirement System of Texas 

to follow with referance to said cases." 

In effect, you ask whether a member retired for 

years of service may be employed as a teacher under the terms 

of the Act. 

In the outset, let us say that we believe that the 

purpose of the citizens of Texas in voting Section 48a, Article III, Constitution of Texas, which authorized the establishment of the Teacher Retirement System, and of the Legislature in passing the Teacher Retirement Act (Article 2922-1, 

Vernon's Annotated Civil Statutes), was two-fold: first, to 

reward and protect those members of an honored profession who 

have given years of service toward the instruction of 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 profession who because of age and 

infirmity can no longer adequately render the vigorous services required of them by such educational system. 

We will now proceed to construe the Act with these 

purposes in mind. 

Section 3 of the Retirement Act provides that all 

persons who were teachers as of the date the Retirement Sgstern was established became members thereof as a condition of 
Mrs. B. B. Sapp, page 2 O-5097 

their employment unless such teacher within 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 shall become a member of the Retirement System as a condition of his emnlosment. In other 

words, under such provisions, except for those teachers who 

filed a notice as above described, membership in the Retirement System is a condition of his employment as a teacher. 

It is settled that the State of Texas may prescribe the wlifications of teachers and may name the conditions under 

which the privilege of teaching may be exercised. We quote 

following from the case of Marrs v. Matthews, 270 S. W.* 

(W. E. ref.): 

the 

586 

"The public free school system in this State 

is largely the creature of the statute. While the 

Constitution directs its establishment, and makes 

provision for its support and maintenance, the 

organic details of the system are left mainly to 

the Legislature. To that body is committed the 

power to provide where public schools shall be 

located, how they shall be controlled and managed, 

the selection of subjects that shall be taught, 

and to fix the qualifications of those who may teach. 

While any citizen may have the inherent right to 

teach a private school for the instruction of the 

young, no one may claim an inherent right to teach 

in the public free schools. Since the State sup- 

-. ,. , .- - pLies tne revenue to support sucn 3cnooLs ana pay 

'bhe salaries of teachers, the State may iustls claim 

the right to orescribe the qualifications of those who 

teach. and name the conditions under which the privilege of teaching may be exercised. 

" A certificate to teach in the public schools 

is merely 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 

is not a contract protected by the due process provisions of either the State or the Federal Constitution * * * *' (Emphasis ours) 

This department held in a letter opinion, dated 

September 22, 1937, to Honorable Mortimer Brown, Executive 

Secretary of the Teacher Retirement System, that once a 
Mrs. B. B. Sapp, page 3 O-5097 

teacher becomes a member of the Retirement System, he cannot 

withdraw from membership 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 selected by such teacher. These conclusions 

were affirmed by our Opinion No. o-1530. 

An examination of the Retirement Act fails to disclose any provision authorizing, or even mentioning the reentering of the teaching profession by a member retired for 

service. On the other hand, there are such provisions with 

respect to beneficiaries under 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 beneficiaries under 60 

Tears of age. Subsection 4 of Section 5 provides that 

Upon retirement for disability a member shall receive a 

service retirement allowance if he has attained the age of 

sixty (60) years; * l *." Otherwise he receives a disability retirement allowance. Where a person under 60 is retired on a disability allowance, such allowance is converted into a service allowance when he reaches 60 years of age. 

Certainly, the limiting of restoration to active service to 

disability beneficiaries under 60 years of age manifests the 

legislative intent that retired members 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 service may not resume 

active service. 

As we have heretofore mentioned, membership in the 

Retirement System is a condition of a teacher's employment. 

If such a retired teacher were allowed to resume teaching, 

there would be the incongruous situation of one person's receiving both a salary as an active teacher and also retirement benefits as a retired teacher. This obviously was not 

the intent of either the people or the Legislature of Texas. 

The word retire is clear in meaning. It means to withdraw. 

A definition of the word appearing in Webster's New Internatlonal Dictionary (Unabridged, 2nd Ed.) is: "TO designate 

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 provisions authorizing members retired 

for service to leave their retirement and re-enter the teaching profession, whereas there are such provisions with respect 

to disability beneficiaries, is as effective as 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 strengthened by the following provision 

of Subsection 4, Section 4 of Article 2922-l: 

"When membership ceases, such prior service 

shall become void. Should the employee again 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 dizability who, is restored to 

active service and provides that zueh a member may be oredited 

with the prior service certificate he had at the time of his 

disability retirement. Under Subsection 4 of Section 4 any 

person-who again b~ecomes a member, except a person who was 

retired on account of dizab~ility, enters az a member not entitled to prior service. It follows,.therefore, that if we 

should hold that a member retired because of service may 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 

service retirement benefits, he would have to teach until he 

had accumulated 20 years of creditable service. (Section 5, 

Subsection 1, Article 2922-l). But as we have said before, 

it izour opinion that a person retired for service may not 

be re-employed as a teacher under the Act. 

Our view is further strengthened by~the fact that 

no provision is made for the transfer of funds upon a return 

to active service by a member retired for service. Subsection 3 of SEction 8, relating to the Membership Annuity Reserve Fund, provides in part as follows:' 

'* * l * This Fund shall be made up of transfers as follows: 

"(a) At the time of service or dizability retirement the accumulated contributions of a retiring 

teacher shall be transferred from the Teach:er Saving 

Fund to the Membership Annuity Reserve Fund as reserves for the membership annuity purchased by his 

contributions. 

"(b) An amount equal to the accumulated contributions of each retiring teacher shall be tranzferred, upon service or disability retirement, from 

the State Membership Accumulation Fund as reserves 
Mrs. B.B. Sapp, page 5 O-5097 

for an additional membership annuity equal to the membership annuity purchased by the teacher. 

"Transfers and payments from the Membership 

Annuity Reserve Fund shall be 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 beneficiary retired on account of disability." 

You will notice that provision IKmaae for transfers 

and payments upon restoration of a beneficiary retired for 

disability to active service. There Is no similar provision 

with respect to members retired for service. 

We think it clear and manifest that the Legislature 

intended that a person retired for service shall not be reemployed as a teacher. Our answer to your first question 

renders unnecessary an answer to your second question. 

Very truly yours 

ATTORNEYGENERAL OF TEXAS 

By s/George W. Sparks 

George W. Sparks 

Assistant 

GWB/s/wc 

APPROVED FEB 15, 1943 

s/Gerald C. Mann 

ATTORNEYGENERAL OF TEXAS 

Approved OplnIon Commlttee By s/BWB Chairman