THEATTORNEYGENERAL 

OF TEXAS 

AUSTIN. T-s 78711 

July 16, 1974 

The Honorable Frank M. Jackson 

Executive Secretary 

Opinion No. H- 348 

Teacher Retirement System of Texas 

314 W. 11th St. 3d Floor 

Austin, Texas 78701 

Re: Circumstances in which a 

teacher who previously has 

forfeited credits accumulated 

m&r Teacher Retirement System 

may later reinstate them. 

Dear Mr. Jackson: 

On behalf of the Teacher Retirement System of Texas, you have 

asked two questions concerning the construction of Art. 3. 25 (b) of the 

Education Code, V. T. C. S. : 

1. May a person reinstate forfeited credit in the 

Teacher Retirement System by depositing the 

amounts specified in Section 3. 25 (b) of the 

Texas Education Code if his only credit for 

subsequent service meeting the statutory requirement of “five subsequent consecutive 

creditable years or seven subsequent creditable 

years within any ten-year period”has also been 

forfeited? 

2. If such reinstatement is permitted, would the fact 

that the member’s deposits for that subsequent 

forfeited service (a) were. withdrawn or (b) escheated to the state under the provisions of Section 

3.52 (d) of the Texas Education Code prevent the 

applicant’s reliance upon it to satisfy the requirements of Section 3.25 (b)? 

p. 1620 
The Honorable Frank M. Jackson page 2 

These questions arise from the following situation. A presently 

employed teacher rendered creditable service for six consecutive years 

beginning in 1943, but termi.nated her membership by withdrawing her 

deposits while absent from service. As presently provided by Art. 3.04(d), 

Education Code, V. T. C. S., her termination of membership caused a 

forfeiture of accumulated credits. She,, returned to teaching in 1952 and 

rendered eight consecutive years of creditable service; however, she 

forfeited her credits for this period because her membership was terminated due to absence from service. Her deposits for this period were 

never withdrawn from the System. In 1972 she again returned to service 

in the public schools of Texas, and is presently attempting to reinstate 

the forfeited credits accumulated during her first term of employment 

(1943 -1949) on the basis of five consecutive years of subsequent service 

during her second term of employment (1952-1960). 

Artic,le 3. 25(b), Education Code, V. T. C. S. provides that: 

Any person who terminates or has terminated membership in the retirement system by withdrawal of deposits or by absence 

from service shall have the privilege of 

reinstating such terminated membership by 

rendering service for five subsequent consecutive creditable years and depositing the 

amount withdrawn plus membership fees for 

t,he years during which membership was terminated plus a reinstatement fee of two and 

one-half percent per annum from the date of 

withdrawal to date of redeposit. The reinstatement fee shall be credited to the state 

contribution account. 

The statute does not expressly require that in order to reinstate 

forfeited cred’_ts on the basis of subsequent service the credits for that 

subsequent service must be unforfeited, and we have found no case dealing 

with this precise issue. 

p. 1621 
The Honorable Frank l$. Jackson page 3 

The privilege of reinstating previously terminated membership 

and the consequent reinstatement of credits for the years of such membership is granted to “any person, ” Art. 3. 25 (b), while other provisions of 

the Teacher Retirement System grant rights and privileges to “members, ” 

e.g., A,rts. 3. 24, 3. 26, 3. 31, Education Code, V. T. C. S. This disparity 

i.n language indicates that the privilege of reinstatement may be exercised 

by one who is not presently a member, such as one who has forfeited 

membership under Art. 3.04. 

Art. 3. 25 (b) also fails to provide a time limit following the rendering 

of the required subsequent service during which the privilege is to be exercised. Under the Judiciary Retirement Act, Art. 6228b, V. T. C. S. , the 

lack of a specified time limit within which application for a refund must be 

made has been construed to allow an unlimited delay prior to such application. Attorney General Opinion S-120 (1954). Concerning this same 

Teacher Retirement System, this office has reflected conditions promulgated by the Board of Trustees, which were not expressed in the statute 

which allows purchase of out of state credits, Art. 3. 26, Education Code, 

V. T. C. S. Attorney General Opinion M-194 (1968). In that opinion it was 

stated that “[t]he Board has no authority to add requirements not set out 

in the statutes.,” _~ 

Generally, the rule of construction for statutes conferring benefits 

upon public employees is: I’ [ A ] n act that is susceptible of more than one 

construction will be so interpreted as to secure the benefits intended. . . ” 

53 Tex. Jur. 2d 224, 225, Statutes 9157 (1964). 

Such pro-beneficiary construction is compelled by the state’s 

public policy as expressed by the courts. The purpose of the Teacher 

Retirement System is: 

. . . to provide security and create an incentive to 

encourage qualified persons to become and remain 

teachers in the Public Schools of Texas . . . . the 

Act should be liberally construed in order to effectuate the whole purpose of the plan. 

p. 1622 
The Honorable Frank M. Jackson page 4 

Woods v. Reilly, 218 S. W. 2d 437, 442 (Tex. 1949). 

This polic,y has ‘been reiterated and applied to strike down a Board of 

Trustees construction which diminished a teacher’s retirement benefits 

in Teacher Retirement System et al v. Duckworth, 260 S. W. 2d 632 

(Tex. Civ. App. - Fort Worth 1953) opinion adopted, 264 S. W. 2d 98 

(Tex. 1954). 

In light of both the statutory language and the strong public policy 

involved, it is our opinion that under Art. 3. 25 (b) a teacher may elect 

to reinstate previously forfeited credits at any time after he has rendered 

the required subsequent service, notwithstanding the forfeiture of credit 

for that subsequent service. 

Your second question deals with the effect of the withdrawal of the 

deposits for the subsequent service or their escheat to the state. 

Under Art. 3.04, the withdrawal of deposits is a manner of forfeiture 

parallel to absence from service. Since it is our opinion that in order to 

reinstat~e membership and credits Art. 3. 25 (b) requires only subsequent 

service for the period provided, neither the manner in which credit for 

the subsequent service is forfeited, nor whether the deposits from this 

subsequent service have e:scheated to the state, is of consequence. 

Otherwise the state’s public policy would be contravened by the imposition 

of conditions upon teachers’ rights under the Teacher Retirement System 

when such conditions are unexpressed by the statutes. 

SUMMARY 

Statutes conferring retirement benefits on public 

employees are to be liberally construed so as to secure 

the benefits intended. Consequently, forfeited membership and credits in the Teacher Retirement System of 

Texas may be reinstated at any time following the 

rendering of the required subsequent service, Art. 3. 25(b), 

p. 1623 
. r 

The Honorable Frank M. Jackson page 5 

regardless of the state of the membership and credits 

which were accumulated during this subsequent service. 

Very truly yours, 

Attorney General of Texas 

0&9/p 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1624