THE ATTORNEY GENERAL 

OF TEXAS 

Ausn~.TExan 78711 

January 12, 1968 

Honorable Frank M. Jackson 

Sxecutive Secretary 

Opinion No. M-194 

Teacher Retirement System of Texas Re: Whether a member of the 

314 West 11th Street Teacher Retirement System 

Third Floor, Lowich Building may purchase current servAustin, Texas ice credit for out-of-state 

service less than three 

years before the date of 

his retirement and related 

questions. under the facts 

Dear Mr. Jackson: stated. 

In your request for an opinion from this office you 

state the following: 

"A member of the Teacher Retirement System 

failed to make application to purchase credit 

for out-of-state service withinthree years and 

payment for such service within five years of 

the date of his membership in the Teacher Retirement System. He later made application to 

purchase out-of-state credit. Under these circumstances, we respectfully present the following questions for your opinion. 

“1. May a member of the Teacher Retirement 

System purchase current service credit for out-ofstate service less than three years before the 

date of his retirement? 

"2 , If the answer to Question No. 1 is in 

the affirmative, would the out-of-state service 

for which payment was made be included in computing the member's retirement benefit at the time 

of his retirement? 

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. - 

Hon. Frank M. Jackson, Page 2 (M-194) 

"3 o If the answer to Question No. 1 is affirmative and Question No. 2 is negative, would 

the member's retirement be adjusted after retirement to include credit for the out-of-state 

service when three years from the date of payment have expired? 

"The above questions are based upon the 

premise that (a) the member has a minimum of ten 

years of creditable service in Texas and two 

years of creditable service in Texas for each 

year of out-of-state service purchased, and (b) 

the out-of-state service for which payment was 

made was in a public school system maintained 

in whole or in part by another state or territory 

of the United States or by the United States for 

children of United States citizens. 

"These questions are pertinent to the specific 

situation outlined below. Mr. Earle H. Fischer, 

a member of the Teacher Retirement System from 

Amarillo, Texas, first inquired in April of 1964 

about purchasing current service credit with the 

Teacher Retirement System of Texas for service in 

a public school of another state. He was then 

sent forms for applying to purchase this credit 

and was referred to the reverse side of the form 

for administrative interpretations of the laws 

governing the purchase of credit for out-of-state 

service 1 He subsequently made the following payments: 

"Date 

Number of 

Years Amount 

March 3, 1965 1 $ 771.61 

February 15, 1966 1 771.61 

April 5, 1967 1 771.61 

May 8, 1967 7 5,401.27 

-925- 
Ronr Frank M. Jackson, Rage 3 (M-194~)' 

"on' May 17, 1967, Mr. Fischer indicated that 

he would be forced to retire’ from the Amarillo 

Public Schools May 31, 1969, because of a ruling 

by the Board of Trustees of the Amarillo Schools 

setting age sixty-five as the compulsory retirement age in that particular school district. Mr. 

Fischer was then informed that if he should retire 

before May 31, 1970, the eight years of out-ofstate service for which payment was made on April 

5, 1967. and May 8, 1967; could not be used in 

determining his benefits and that deposits made 

far these years would'be refunded to him. The 

years for which payment was made on March 3, 1965, 

and February 15, 1966, were not questioned. 

"Mr. Fischer contends that the administrative 

interpretation of the laws governing the Qurchase~ 

of credit for out-of-state service is in error. He 

has requested that he be allwed to retire on May 31. 

1969, with his benefit computed without using the last 

eight years of out-of-state servioe for which payment was made, then have his benefit adjusted three 

years from the date of payment for the additional 

out-of-state service to include'such service. 

"Mr. Fischer became a member of the Teacher 

Retirament System of Texas in September of 1940. He 

satisfies other conditions of the law pertaining to 

Texas service credit. 

"The basic Teacher Retirement Law is codified 

as Article 2922-1, Vernon's Texas Civil Statutes. 

Section 14 pertains to out-of-state service. This 

law was enacted as S.B. 290, 54th Texas Legislature, 

Regular Session, 1955. The provisions of this Section permitting a person who was a member prior to 

1955 to purchase credit for out-of-state service expired three years after the effective date of the 

Act. 

"Section 2 of S.B. 99, 57th Texas Legislature, 

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Hon. Frank M. Jackson, page 4 (M-194) 

Regular Session, 1961, (Article 6228a-4, Vernon's 

Texas Civil Statutes) again provided for the purchase of out-of-state service. This Bill contained 

no provision for regulating the purchase or computing the payment for such service. It did repeal all laws in conflict to the extent of the 

conflict only, 

"In administering S.B. 99, Section 2 thereof 

was considered to have replaced all of Section 14, 

Subsection 1, of S.B. 290, Subsections 2, 3, 4, 

5 and 6 of Section 14. S.B. 290, were considered 

to remain in force with the exception of the last 

portion of Subsection 2 reading as follows: '. . , 

and failure to make the remaining deposits required, 

within the next two (2) consecutive years, shall 

forfeit the privilege of purchasing any credits 

for which deposits have not been made.' This portion seemed to conflict with the new provisions of 

S.B. 99. 

"Since the enactment of S.B. 99, the administrative construction of Section 2(b) has been that 

all service credit, unless purchased under the provisions of Section 2 (a), purchased by a 'member' 

would be granted three years after the date of payment, but that all service credit must be validated 

by a three-year waiting period while still a member 

of the Retirement System. This would mean that 

payment must be made at least three years prior to 

the date of retirement. This seemed to be consistent 

with other provisions of the retirement law and 

especially with Section 5, S.B. 290, 54th Texas 

Legislature, 1955, which specifies~ the service requirements under which a 'member" may qualify for 

retirement. Section 2, S.B. 290, specifically provides that 'membership' terminates upon retirement. 

No provisions (except for specific Bills increasing 

benefits) could be found for adjusting benefits after retirement except the authority to correct an 

error. 

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. . 

RoPn, Frank M. Jackson, Rage 5 (M-194) 

8, I, 

. . . 

The controlling statutory provisions, are Subdivis~ions 

(a) and (b) of Section 2 of Article 6228a+4 of Vernon's Civil 

Statutes (Acts 1961, 57th Leg., R.S., Ch. 22, p. 35, S-B-. 99) 

which read as follows: 

“(a) In the event application for such purchase is made within three (3) years and payment 

within five (5) years from date of membership in 

this System, ~current service credit will be oranted, 

imrrediptelv uoon oavment. 

"(b) In the event application for such purchase is not made within three (3) years or pay-, 

ment not made within five (5) years from date'of 

membership in this System, mt service credit 

will be orantsd three (3) years after~the date of 

flvment." (Rmphasis added.) 

Section 3 of this Act expressly repeals all laws 

parts of laws in conflict therewith. The Emergency Clause 

"Sec. 4. Bmergency Clause. The fact that 

laws permitting teachers to,receive credit for 

service and to purchase out-of-state service have 

expired and no, legal prwisions nw exist per-, 

mitting such generally accepted righ,ts, creates 

an emergency and an imperative public necessity 

that the Constitutional Rule requiring bills to 

be read on three several days in each House be 

suspended, and said Rule is hereby suspended: and 

that this Act shall take effect and be in force 

from and after its passage, and it is so enacted." 

The controlling provisions in these Subdivisions (a) 

and (b) are those which relate tot 

(l)'the date of payment: 

(2) the time when current service credit will 

be granted. 

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. . 

Hon. Franlq M. Jackson, page 6 (M-194) 

I 

Subdivision (b) rather than Subdivision (a) is applicable to the facts presented. Subdivision (b) is couched in 

plain and unambiguous language in specifying that "current 

service credit will be qranted three (3) years after the date 

of payment." (Emphasis added.) The Legislature did not add 

to said provision words to the effect, "in the event such member has not retired before the end of such three-year period," 

We believe that payment may be made at any time prior to retirement and that the service credit may be granted three 

years after the date o'f such payment even though the member of 

the Retirement System has fully retired after he made the payment and before expiration of the three years after the date of 

such payment, as the Legislature did not provide otherwise. 

Your second question is answered in the negative, and your third 

question is answered in the affirmative. For service in Texas, 

the date of retirement will control as to the age of the member 

and the beneficiary. For out-of-state service which has been 

purchased within less than three years prior to retirement. the 

age of the member and the beneficiary on the subsequent date 

which is three years from the date of payment will control in 

computing the additional benefits. 

Our view is based primarily upon the statutory language 

of Article 6228a-4, Section 2 (b). our position is f~urther sustained by the fact that Article 6228a-4, enacted in 1961, appears 

to have for its primary purpose removal of the time limit provided in Article 2922-1, Section 14, enacted in 1955, which placed 

rather strict limitations upon the time within which members of 

the Retirement System were required to make application for purchase of equivalent current service credit. 

Section 8.42 of the Rules and Regulations of the Board 

of Trustees for the Teacher Retirement System of Texas, relative 

to the purchase of credit for out-of-state service, provides 

that if application and payment are later than specified in 

Section 8.41, which is the present case, credit cannot be allowed 

sooner than three years after payment: and Section 8.6 provides 

that if payment is made but the member does not serve long enough 

in Texas to receive retirement credit for out-of-state service, 

payment will be refunded with interest at the rate of 2%% for 

each whole school year. This rule would not apply to the fact 

-929- 
. . 

non. Frank M. Jackeon. page 7 (M-194) 

situation presented. The Board has no authority to add requirements not set out in the statutes 

- SUMMARY 

A member of the Teacher Retirement System 

may purchase current service credit for out-ofstate service less than three years before the 

date of his retirement, under the facts stated. 

For out-of-stare service which has been purchased within less than three years prior to retirement. the age of the member and the beneficiary on the subsequent date which is three 

years from the date of payment will control in 

computing the additional benefits. 

Prepared by ~Bill Allen 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips. Chairman 

Kerns Taylor, Co-Chairman 

W. V. Geppert 

W. 0. Shultz 

John Grace 

John Banks 

A. J. CARUBBI, JR. 

Staff Legal Assistant 

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