The Honorable Kenneth Ii. Ashworth OpinionNo. H-871 Commissioner CoordinatingBoard Re: Whether teaching Texas College & University System assistants are required Austin, Texas 78711 to be members of the Teacher Retirement System.

Dear CommissionerAshworth:

You have asked us:
Under the Teacher Retirement System of the Texas Education Code aresteaching assistants that are classified as parttime employees of a university required to be members of the Teacher Retirement System?

We begin by noting thatthe Texas Education Code provides:
Every person who may be employed as a teacher or auxiliary employee in any public school or other branch or unit of the public school system of this state shallbecome a member of the teacherretirement system as a condition of his employment. Section 3.03(b). (Emphasisadded).
"Teacher" is defined as:

any person employed to render teaching service on a full-time, regular salary basis bythe governing board of any echool district created under the laws

p.3672. -

The Honorable Kenneth H. Ashworth - page 2 (H-871)

of this state, by any county school board, by the State Board of Trustees of the Retirement System,by the State Board of Education,by the Central Education Agency, by the~boardof regents of any college or university,or by any other legally constitutedboard or agency of any public school. Section 3.02(a)(3). (Emphasisadded)q "Auxiliary employee" is defined as:

a person other than a 'teacher'employed 0" 5 full-time, regular ealarybasis by the boards or asencies listed in Subsection (a)(3)of this section. Section 3.02(a)(5). (Emphasisadded).
The "full-time"requirementwould seemingly exclude part-time teaching assistants,as well as bus drivers, cafeteria workers and similar employees from either of the above definitions, except that since 1961 the Board of Trustees of the System has applied an administrativeregulationwhich provides: En$loyt by pul+ic! stafe-supported

e ucat onal instrtutlons In Texas for one-half or more of the standardwm load at afasoearable to the rate forother persons employed in similar

Trustees, Teacher Retirement System of Texas, section 334.03.01.001. (Emphasis added).

It is urged by some that this administrativedefinition of "regular, full-time service" is at variancewith the intendedmeaning of the statutoryphrase, "full-time,regular salary basis," and shouldbe disregarded. See Brown Ex ress, **Inc. v.**  Railroad Commission, 415 s.w.2a 39479-x. -!i& -- 1967).

**p. 3673** The Honorable Kenneth Ii. Ashworth - page 3 (H-871)

The rule adoptedby the Board of Trustees in ~1961 replaced one in effect since 1937which authorizedmembership for any person whose public school salary constituted 50% or more of all current salary earned. The various educational institutions in the state have a substantial degree of autonomy in determining standardworkloads for both teachers and other employees. The workload varies among the different types of work -- for example, that of ,a college teacher is generallymeasured by the number of "hours" taught, and that of a bus' driver by the route he drives. A cafeteria employee is paid according to the number of clock hoursworked --whichwill often be lesb than the hours required for a school office secretary.
The Texas Education Code sectionsdealingwith the Teacher Retirement System were adopted in 1969, after the Board's definition had been implemented for a number of years and aftermany persons had become members of the System pursuant to its terms. Section 3.03(a)of the Code specifies that "Allpersons who on the effectivedate of this code were members of the Teacher Retirement System of Texas shall continue as members subject to the provisions of this chapter.

. . -" Section 3.02(b)of the Codeprovides that "[iln case of doubt the State Board of Trustees of the retirement system shalldeterminewhether a person is a 'teacher'or 'auxiliaryemployee'within the contemplation of [Chapter31." Section 3.59(i)of the Code states: "Subject to the provisions in this chapter, the State Board of Trustees shall, from time to time, establish rules and regulations formembership eligibility. D s *"

We cannot say that the definition of "full-time, regular salarybasis" which the Board of Trusteeshas administratively supplied and followed formany years in the absence of legislativeobjection is so unreasonable and arbitrary that Texas courtswould disregard it. During the past fifteenyears, the Legislaturehas declined to alter the rule so that it would exclude teaching assistants and other employeeswho work substantially less than 40 hours per week. In that period of time,persons have accumulated credit in the System and in some cases have receivedbenefits attributable to service as teaching assistants, cafeteria workers, secretaries,etc. Eight years after the rule became effective, the Legislature specifically indicated that persons who were presentlymembers of the Teacher Retirement System

p.3674The Honorable Kenneth H. Ashworth - page 4 (H-871)

would continue theirmembership notwithstandingcodification of the retirement statutes. While we would not have constructed the rule in thismanner, we do not believewe can do in the opinion process what the Legislature a@Teacher Retirement system have declined to do. This determination is in keepingwith the rule that such laws should be liberally interpreted to provide security for members and to encourage qualifiedpersons to become and remain teachers in public education. See **w0?a8** v. R;illy, 218 S.W.,Zd437 (Tex.Sup. 1949); Teacher Retirement ystem v. Duckworth, 260 S.W.ZH 632 (Tex.Civ.App. -- Fort WorthT953), afFcl 264 S.W.2d 98 (Tex.Sup. 1954).
SUM MA R Y

Teaching assistants at public universities are required to be members of the Teacher Retirement System of Texas if they are employed on a "full-time,regular salary basis" as that term has been defined by the Board of Trustees of the Teacher Retirement System of Texas. Very trulyyours,

Attorney General of Texas

APPROVED:

DAVID M. KENDALL, First Assistant

Opinion Committee jwb

p.3675