December 29, 1971 

Hon. Frank >I. Jackson 

Executive Secretary 

Opinion No. M-1027 

Teacher Retirement System Re: Questions relating to the 

of Texas Teacher Retirement System 

Lowich Building and the Optional Retirement 

Austin, Texas 78701 Program. 

Dear %r. Jackson: 

Your request for an opinion on the above subject matter 

reads in part as follows: 

“A ‘faculty member’ in an institution of 

higher education in Texas elected to go to the 

Optional Retirement Program as provided by Title 

3, Chapter Sl, Subchapter G of the Texas Edu- ~. 

cation Code (S.B. 292, 60th Legislature, 1967). 

He later changed to a position, still in an institution of higher education in Texas, which is 

not classified as ‘faculty member’ and became a 

member of the Teacher Retirement System as provided in Attorney General’s Opinion No. bl-647. 

This same employee has again been changed to a 

position which can be classified as ‘faculty member.’ Based on this information we request your 

opinion on the following questions. 

II 1. Is the employee of the institution of 

higher education described above required to remain in the Teacher Retirement System? 

II 2. If your answer to Question 1 is in the 

negative, may he again return to the Optional Retirement Program? 

“3. If the answer to Question 2 is in the 

affirmative, is he required to return to the 

Optional Retirement Program? 

-5008- 
Hon. Frank M. Jackson, page 2 (M-1027) 

“The second situation involves a person who 

was employed in an institution of higher education 

in Texas as a ‘faculty member’ with an opportunity 

made available to him to become a member of the 

Optional Retirement Program. This faculty member 

did not elect to become a member of the Optional 

Retirement Program until the time permitting him 

to make such an election had expired. He therefore continued to be a member of the Teacher Retirement System. This ‘faculty member’ has now 

moved to another institution of higher education 

in Texas. We respectfully request your opinion on 

the following question. 

1, 4. Is a ‘faculty member’ whose time for 

electing to become a member of the Optional Retirement Program has expired again eligible to 

elect to become a member of the Optional Retirement Program as a new employee in another institution of higher education in Texas? 

“The third situation involves the opposite of 

the one outlined above. A ‘faculty member’ in an 

institution of higher education in Texas elected to 

become a member of the Optional Retirement Program. 

He has now moved to another institution of higher 

education in Texas still as a ‘faculty member.’ 

The question is. 

I, 5. Is a ‘faculty member’ who has elected to 

become a member of the Optional Retirement Program 

eligible to elect to become a member of the Teacher 

Retirement System as a new employee of another institution of higher education in Texas?” 

In Attorney General’s Opinion M-647 (1970) the Summary 

reads : 

“Article 2922-1.03, V.C.S., requires all 

persons employed as teachers or auxiliary employees of an institution of higher education 

to be members of Teacher Retirement System of 

Texas unless they are members of Optional Retirement Program. 

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. - 

Hon. Frank Fl. Jackson, page 3 (M-1027) 

“Article 2922-li. V.C.S., provides an Optional 

Retirement Program for ‘faculty members’ only as 

defined in said statute. 

“Former ‘faculty members’ who no longer meet 

definition of ‘faculty member’ are required to 

rejoin Teacher Retirement System as provided for 

under Article 2922-1.03, 2922-1.04 and 2922-2.05 

V.C.S. but said former faculty members are not 

eligible to receive credit with the Teacher Retirement System of Texas for any service during 

which time they were members of the Optional Retirement Program.” 

The controlling statute is Section 5 of .Irticle 2922-li, 

Vernon’s Civil Statutes, which reads: 

“A faculty member (including one SO employed 

on the effective date of this Act) \<ho becomes 

eligibles to pa.rticipate in the Optional Retirement 

Program and \iho 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 and retaining a 

limited membership in the Retirement System 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 available at the institution of higher 

education at which such faculty member 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 such faculty 

member 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 such 

faculty member is employed shall make such 

election within ninety (90) days follouing the 

date on which such faculty member becomes eligible 

to participate in the Optional Retirement Program. 

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Hon. Frank M. Jackson, page 4 (M-1027) 

A faculty member exercising the option to participate in the Optional Retirement Program as aforesaid shall not thereafter be eligible for membership in the Retirement System except as a limited 

member pursuant to Section 7 hereof unless such 

member 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. A faculty member 

not exercising the option to participate in the 

Optional Retirement Program as aforesaid shall 

be deemed to have chosen to continue membership 

in the Retirement System in lieu of exercising 

such option to participate in the Optional Retirement Program.” 

It is our opinion that the provisions of Section 5, 

above quoted, do not authorize a series of elections between the 

retirement systems, but rather authorize eligible persons to 

exercise such option only once, and during the prescribed period 

stated therein. 

Your fir~st’three questions are accordingly answered by 

the following sentences. An employee of an institution of higher 

education described in your first situation is required to remain 

in the Teacher Retirement System. Such employee may not again 

elect to participate in the Optional Retirement Program. 

In answer to your fourth question you are advised 

that a faculty member whose time for electing to become a member 

of the Optional Retirement Program has expired may not at a subsequent date elect to become a member of the Optional Retirement 

Program as a new employee in another institution of higher education in Texas. 

Likewise, in answer to your fifth question! a faculty 

member who has elected to become a member of the Optional Retirement Program is not eligible to become a member of the Teacher 

Retirement System as a new employee of another institution of 

higher education in Texas. 

SUMMARY 

Section S of Article 2922-li, V.C.S., authorizes a faculty member of an institution of 

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. 

. ..* ’ 

. 

Hon. Frank M. Jackson, page S (M-1027) 

higher education to make only one election concerning whether such faculty member desires to 

participate in the Optional Retirement Program 

or chooses to continue membership in the Teacher 

Retirement System. 

Prepared by John Reeves 

Assistant Attorney General 

APPROVED: 

OPINION COMblITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Pat Bailey 

John Banks 

Harriet Burke 

James Quick 

SAM MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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