# 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. 11thSt. 3d Floor Austin, Texas 78701 Re: Circumstances inwhich a teacher who previously has forfeited credits accumulated m&r Teacher Retirement System may later reinstate them. Dear Mr. Jackson:

On behalf ofthe Teacher Retirement System ofTexas, you have asked two questions concerning the construction ofArt. 3.25 (b) ofthe Education Code, V.T. C.S. :

1.May aperson reinstate forfeited credit in the Teacher Retirement System by depositing the amounts specified in Section 3.25 (b) ofthe Texas Education Code ifhis only credit for subsequent service meeting the **statutory re**  quirement of “five subsequent consecutive creditable years or seven subsequent creditable years within any ten-year period”has also been forfeited?
2.Ifsuch 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 withdrawn or (b) escheated to the state under the provisions ofSection 3.52 (d) ofthe Texas Education Code prevent the applicant’s reliance upon it to satisfy the requirements ofSection 3.25 (b)?

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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 bywithdrawing her deposits while absent from service. As presently provided byArt. 3.04(d), Education Code, V. T. C.S., her termination ofmembership caused a forfeiture ofaccumulated 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 toabsence from service. Her deposits for this period were never withdrawn from the System. In 1972 she again returned to service in the public schools ofTexas, and is presently attempting to reinstate the forfeited credits accumulated during her first term of employment (1943 -1949) on the basis offive 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,heyears during which membership was terminated plus a reinstatement fee oftwo 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.

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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.nlanguage indicates that the privilege of reinstatement may be exercised by one who is not presently amember, such as one who has forfeited membership under Art. 3.04.

Art. 3.25 (b) also fails to provide atime limit following the rendering ofthe required subsequent service during which the privilege is tobe exercised. Under the Judiciary Retirement Act, Art. 6228b, V. T. C.S., the lack ofa specified time limit within which application for a refund **must** be made has been construed toallow 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). Inthat opinion it was stated that “[t]he Board has no authority toadd requirements not set **out** inthe statutes.,” _~

Generally, the rule of construction for statutes conferring benefits upon public employees is: [ ] I’A nact that is susceptible ofmore 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 bythe courts. The purpose ofthe Teacher Retirement System is:

. . . to provide security and create an incentive to encourage qualified persons to become and remain teachers inthe Public Schools of Texas
. . . . the Act should be liberally construed in order to effectuate the whole purpose ofthe plan.

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Woods v. Reilly, 218S.W. 2d 437, 442 (Tex. 1949). This polic,y has ‘been reiterated and applied to strike down aBoard of Trustees construction which diminished ateacher’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).

Inlight ofboth the **statutory** language and the strong public policy involved, itis our opinion that under Art. 3.25 (b) ateacher 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 ofthe withdrawal ofthe deposits for the subsequent service or their escheat to the state.

Under Art. 3.04, the withdrawal ofdeposits is amanner offorfeiture parallel toabsence 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 inwhich 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 ofconditions upon teachers’ rights under the Teacher Retirement System when such conditions are unexpressed **by** the statutes. SUMMARY Statutes conferring retirement benefits onpublic 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 ofthe required subsequent service, Art. 3.25(b),

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regardless ofthe state ofthe membership and credits which were accumulated during this subsequent service. Very truly yours,

Attorney General ofTexas



# 0&9/p DAVID M. KENDALL, Chairman Opinion Committee

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