The Honorable Kenneth Ii. Ashworth Opinion No. H-871 

Commissioner 

Coordinating Board Re: Whether teaching 

Texas College & University System assistants are required 

Austin, Texas 78711 to be members of the 

Teacher Retirement 

System. 

Dear Commissioner Ashworth: 

You have asked us: 

Under the Teacher Retirement System of 

the Texas Education Code ares teaching 

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 shall become a member of the 

teacherretirement system as a condition 

of his employment. Section 3.03(b). 

(Emphasis added). 

"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~board of regents of any 

college or university, or by any other 

legally constituted board or agency of any 

public school. Section 3.02(a) (3). 

(Emphasis added) q 

"Auxiliary employee" is defined as: 

a person other than a 'teacher' employed 

0" 5 full-time, regular ealary basis by 

the boards or asencies listed in Subsection (a) (3) of this section. Section 

3.02(a) (5). (Emphasis added). 

The "full-time" requirement would 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 administrative regulation which 

provides: 

En$loyt by pul+ic! stafe-supported 

e ucat onal instrtutlons In Texas for 

one-half or more of the standard wm 

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 administrative definition 

of "regular, full-time service" is at variance with the 

intended meaning of the statutory phrase, "full-time, regular 

salary basis," and should be 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 adopted by the Board of Trustees in ~1961 

replaced one in effect since 1937 which authorized membership 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 standard workloads for 

both teachers and other employees. The workload varies 

among the different types of work -- for example, that of ,a 

college teacher is generally measured 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 hours worked --which will often be lesb than 

the hours required for a school office secretary. 

The Texas Education Code sections dealing with the 

Teacher Retirement System were adopted in 1969, after the 

Board's definition had been implemented for a number of 

years and after many persons had become members of the 

System pursuant to its terms. Section 3.03(a) of the Code 

specifies that "All persons who on the effective date 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 Code provides 

that "[iln case of doubt the State Board of Trustees of the 

retirement system shall determine whether a person is a 

'teacher' or 'auxiliary employee' within the contemplation 

of [Chapter 31." 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 for membership eligibility. D s *" 

We cannot say that the definition of "full-time, 

regular salary basis" which the Board of Trustees has administratively supplied and followed for many years in the 

absence of legislative objection is so unreasonable and 

arbitrary that Texas courts would disregard it. During the 

past fifteen years, the Legislature has declined to alter 

the rule so that it would exclude teaching assistants and 

other employees who 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 received benefits 

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 presently members of the Teacher Retirement System 

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

would continue their membership notwithstanding codification 

of the retirement statutes. While we would not have constructed 

the rule in this manner, we do not believe we can do in the 

opinion process what the Legislature a@Teacher Retirement 

system have declined to do. This determination is in 

keeping with the rule that such laws should be liberally 

interpreted to provide security for members and to encourage 

qualified persons to become and remain teachers in public 

education. See w0?a8 v. R;illy, 218 S.W.,Zd 437 (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 truly yours, 

Attorney General of Texas 

APPROVED: 

DAVID M. KENDALL, First Assistant 

Opinion Committee 

jwb 

p. 3675