June 18, 1969 

Honorable Graves Landrum Opinion No. M-420 

Vice-Chancellor for Administration 

The University of Texas System Re: Whether rights of an emAustin, Texas ployee, participating in 

the Optional Retirement 

Act, vest after one year's 

participation in the 

Optional. Retirement'ProDear Mr. Landrum: gram, and related questions. 

You have requested that this office answer the following 

questions: 

"1. Do rlghts~ of the employee particlpatlng in the Optional Retirement Act vest 

after one year's participation in the Optional 

EEtFement Program? 

"2. If answer ,to question 1 is yes, then 

do the rights of the employee vest on his first 

day of employment after one year's participation 

in the O.R.P.? 

"3. Is it mandatory that the participation 

requirements in the 0.R.P'. be completed at one 

institution, or may the participation requirements be completed 'In more than one state-supported 

institution of higher education, including junior 

colleges, to insure vesting after dne year of 

participation? 

“4. Does the employee have a vested interest after one year's participation even 

though the participation might be with more 

than one instiance company? 

Article 2922-11, Vernon's Civil Statutes, provides for 

the Optional Retirement Program for. teachers and administrative 

-2099- 

. . 
Ron. Craves Landrum, page 2 (~-420, 

personnel employed by state-supported institutions of higher 

education and reads, In part, as follows: 

“Section 1. The Legislature finds that 

higher education Is vitally important to the 

welfare, If not the survival, of Texas and 

the United States at this stage. In history 

and that the quality of higher education Is 

dependent upon the quality of college and 

unlverelty faculties. The Legislature finds, 

therefore, that moneys spent on recognized 

means for producing an excellent system of 

public higher education Is money spent to 

serve a public purpose of great importance. 

The Legislature finds further that a sound 

faculty retirement program that provides 

full and complete retirement benefits to 

teachers and administrators who have given 

faithful service to state -supported lnstltutlons of higher education Is a well-recognized 

means for Improving a state’s program of public higher education. The Legislature’s purpose in establlshlng the retirement program 

provided for by this Act Is to improve further 

the higher education available to the youth at 

the state-suonorted ‘colleges and universities 

and to estabiish this retirement program as 

part of the plan of compensation for the faculty 

of these colleges and universities. 

“Sec. 2. As used in this Act, unless the 

context otherwise requires: 

,I 

. . . 

“(c) ‘Institution of higher education’ 

means an lnstltutlon of higher education as 

defined under the provisions of Chapter 12, Acts, 

Regular Session, 59th Legislature (1965), and 

lncludlng James Connally Technical Institute, 

except the Rodent and Predatory Animal Control 

Service. 

“(d) ‘Faculty member’ means a person employed by an institution of higher education 

on a full time basls as a member of the faculty 

or staff and whose duties Include teaching, 

-.2100 - 
Hon. Graves Landrum, page 3 (~.420~ 

research, administration, Including professional librarians, or the performance of professional services but does not mean a person 

employed in a position which Is In the lnstltutlon’s classified personnel system or a person 

employed In a similar type of position if the 

Institution does not have a classified personnel 

system. 

“(e) ‘Governing Board ’ means the body 

charged with policy direction of any institution 

of higher education. 

“(f) ‘Optional Retirement Program’ means 

the optional retirement program created by this 

Act to provide fixed or variable retirement annuities, Including retirement unit annuity 

certificates of participation for faculty 

members. 

“Sec. 3(a) There Is hereby established 

an Optional Retirement Program. Participation 

in the Optional Retirement Program Is In lieu 

of active membership in the Retirement System, 

The Qoverning Boards for all Institutions of 

higher education shall make available to all 

faculty members In their component Institution’s, 

agencies and units the Optional Retirement Pro- 

“(b) All faculty members are eligible to 

participate in the Optional Retirement Program, 

subject to such rules as may be prescribed by 

the Qoverning Board of the institution of higher 

education at which they are employed. 

“Sec. 4. In administering the Optional Retirement Program a Qovernlng Board may provide 

for the purchase of annuity contracts from any 

insurance or annuity company o.uallfled and admitted 

to do business in this state. Any life Insurance or 

annuity company qualified and admitted to do 

business In this state shall be exempt from the 

payment of al: franchise or premium taxes as to 

all annuity or group Insurance contracts made 

pursuant to a benefit program authorized by the 

governing board of an Institution of higher education, or by any private non-profit educational 

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Hon. Graves Landrum, page 4 (M-420) 

Institution of higher learning, which benefit 

program is paid for in whole or in part from 

the funds of such institution. Where a Governing 

Board has more than one component Institution, 

agency or unit under Its jurisdiction, it may 

provide a separate Optional Retirement Program 

for each component Institution, agency or unit 

or place two or mbre component institutions, 

agencies or units under a single program. 

n * . . ” (Emphasis added. ) 

The answers to your first two questions are found In 

the provisions set out In Section 3(a) of Article 2922-11, as 

above quoted. The glaln and unambiguous language of this section sets out that the Optional Retirement Program shall rovlde for vesting of benefits after one year of parti& 

We therefore hold that your first question Is answered 1 

Accord, Attorney Genera’l’s Opinion No. ~-1G6 

th e 

affirmative. 

(1968). 

Article 23, Vernon’s Civil Statutes, defines year to 

mean a calendar year. It 1s well established both at common 

law and by statute, that, unless otherwise expressed the word 

“year” when used is a contract, judicial proceeding or statute, 

or constitution, ordinarily 1s understood to mean a calendar 

year, regardless of whether It be leap year or otherwlse.’ 

Douglas v. Acacia Mu 

Civ.App. 1938, error 

118 S.W.2d 643 (Tex. 

r v. National Life and 

Accident Ins. Co., 63 ex.Clv.App. 1933 , error 

ref.) th e Court set means “at the end of” 

“as soon as” and In computation of time the word “after” 

&erally understod In the sense of excluding the day or date 

mentioned, Words In a statute must be given their enerally 

accepted meaning. Calvert v. Audio Center Inc., 34% S.W.2d 

420 (Tex.Clv.App. 1961 , error ref. n.r.e.). Applying the above 

stated definitions to the words 

tlclpatlon”, 

“vesting after one year of parwe hold that the rights of an employee vest on ~hls 

first day of employment, after one year’s participation in the 

Optional Retlrement Program, and your second question is answered 

In the affirmative. 

To arrive at the Intention of the Legislature In regard 

to your third question we must look at the full Act. Having the 

power to set up the Optional Retirement Frcgram, the Legislature 

had the power to spell out Its requirezer,ts. This it has done 

by delegating the duty to the governing board of each institution 

--2102 - 
Hon. Graves LandNm, page 5 (M- 420) 

of higher education to make an Optlonal Retirement Program 

available for the faculty of its institution. Section 3 

specifically gives the governing board of each lnstltutlon 

of higher education the authority to make the rules governing 

the program for that lnstltutlon, and to provide in those 

rules that there be a vesting of benefits after one year of 

participation. Section 4 provides that the governing board 

may provide for the purchase of annuity contracts from any 

Insurance or annuity company qualified and admitted to do 

business in Texas. The act clearly sets out, In all of Its 

provisions and requirements, the duty and responsibility for 

the Optional Retirement Program to be with the governing board 

of each institution of higher education. 

We therefore hold that It is mandatory that the faculty 

member must have participated in the Optional Retirement Program 

at one Institution of higher education for at least one calendar 

year to be eligible for vesting of benefit rights under the Optional Retirement Program. 

Where the governing board of a system composed of more 

than one component institution, such as the University of Texas 

system, has adopted a program placing all Institutions within 

the system under one program, It Is our opinion that an employee 

may meet the one year vestlng.requlrement by participating in 

such program In any one or more Institutions within the system 

within the same calendar year. 

For purposes of anawerlng your fourth question we 

have searched the statute for provisions providing for the 

vesting of benefit rights by participating ln more than one 

Insurance program. Section 4 provides that the governing board 

may have a program with more than one Insurance company for its 

faculty members. Therefore, It 1s our opinion that an employee 

may have a vested Interest after one year's participation In 

the program of that lnstltutlon even though It may be with more 

.,than one Insurance company that was approved by the governing 

board of that Institution. 

SUUMARY 

Article 2922-11, V.C.S., requires that 

Optional Retirement Programs provide for 

vesting of benefit rights after one year of 

participation in the program by an emplcyee. 

Said vesting Is to be effective on his first 

day of employment after one year’s participation 

- 2103- 
Hon. Graves Landrum, page 6 (~-420~ 

In the program prescribed by the governing board 

of the inetitution. It Is mandatory that the 

partlclpatlon requirements be completed at one 

Institution. Where the governing board of a 

system composed of more than one component 

Institution, such as the University of Texas 

system, has adopted a program placing all lnstltutlons within the system under one program, 

It Is our opinion that an employee may meet 

the one year vesting requirement by participating 

In such program In any one or more lnst%tutlons 

within the system within the same calendar year. 

The participation may be with more than one approved Insurance company. 

Prepared by William J. Craig 

Assistant Attorney General 

General of Texas 

APPROVED: 

OPINION' COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

Joseph Sharpleg 

Sam McDaniel 

Houghton Brownlee 

Jlm Swearingen 

W. V. Geppert 

Staff Legal Assistant 

Hawthorne Phillips 

Executive Assistant 

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