E NEU GENERAL 

F XAS 

April 27,, 1967 

Hon. Frank M. Jackson Opinion No. ~-64 

Executive Secretary 

Teacher Retirement System Re: Whether a person receiving 

of Texas disability benefits from 

Lowlch Building the Teacher Retirement 

Austin, Texas 78714 System, who becomes engaged 

In a gainful ocoupatlon, 

should have his disability 

benefit reduced or suspended 

on the basis of his current 

Bear Mr. Jackson: earning capacity. 

You have requested the opinion of this office regarding 

the following speclflc questions: 

“1. If a person receiving dlsablllty 

benefits from the Teacher Retirement System 

becomes engaged In a gainful occupation, 

should the amount of his allowance from the 

Teacher Retirement System be reduced to an 

amount by which the salary earned during 

his last year of service In the public schools 

of Texas exceeds his present earning capacity 

or suspended if his current earning capacity 

exceeds his last earned salary In the public 

schools of Texas? 

“2. If your answer to Question No. 1 

Is in the affirmative, would the fact that the 

person receiving disability benefits from the 

Teacher Retirement System Is past age sixty 

(60) permit him to be employed In a gainful 

occupation without such benefits being reduced 

or canceled as a resuit of such earnings in 

a gainful occupation? 

Article 2922-1, Vernon’s Civil Statutes, provides for 

the creation and operation of the Teacher Retirement System of 

Texas D Section 6 thereof establishes a disability benefit, and 

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Hon. Frank M. Jackson, page 2 (M-64) 

sets forth the terms and conditions under which such benefits 

may be paid. Although lengthy, It is necessary that we quote 

the major portion of Section 6: 

"Sec. 6. 1. Upon application of the member or (where the member 1s unable to make application) of his employer or legal representative 

acting on behalf of the member, the State Board of 

Trustees may, not less than thirty (30) nor more 

than ninety (90) days after filing of said appllcatlon, retire such member upon the applicable dlsability benefit set out below, provided that the 

Medical Board, after a medical examination of suoh 

member, shall certlfv that such member is mentally 

or physically disabled for the further performance 

of duty and that such dlsablllty 1s likely to be 

permanent. In such event, the member shall retire 

subject to the provisions of this Act, upon a dlsability retirement benefit as follows: 

"(a) If the member has less than ten (10) 

years of creditable service at date of such retlrement, he shall be paid a disability benefit of 

Fifty Dollars ($50.00) per month, for the duration 

of such disability, or for the duration of his life, 

or for a period of months equal to the number of 

months of creditable service rendered by such member prior to date of such retirement, whichever 

term is shorter. 

"(b) If the member has more than ten (10) 

years of creditable service, but Is not eligible 

for service retirement, he shall receive the 

standard annuity calculated on the basis of his 

creditable service to date of retirement, or the 

sum of Fifty Dollars ($50.00) per month, whlchever amount Is greater, for the duration of his 

disability; and In the event the disability retirement occurs after or shall continue until 

such person attains sixty (60) years of age, 

the total disability shall thereafter be conclusively presumed continuous for the remainder 

of his life. 

"2. Beneficiaries Retired on Account of 

Disability. 

'Once each year during the first five (5) 

years following retirement of a member on a 

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Hon. Frank M. Jackson, page 3 (M-64) 

disability retirement allowance, and once in 

every three-year period thereafter, the State 

Board of Trustees may, and upon his application 

shall, require any disability beneficiary who 

has not yet attained the age of sixty (60) years 

to undergo a medical examlnatlon, such examlnation to be made at the place of residence of said 

beneficiary or any other place mutually agreed 

upon, by a physician or physicians designated by 

the Board of Trustees, Should any dlsabillty 

beneficiary who has not yet attained the age of 

sixty (60) years refuse to submit to at least 

one medical examination In any such periods by a 

physician or physicians designated by the State 

Board of Trustees, his allowance shall be dlscontinued until his withdrawal of such refusal, 

and should his refusal continue for one year, 

all his rights In and to his allowance shall be 

revoked by the State Board of Trustees. 

"(a) Should the Medical Board report and 

certify to the State Board of Trustees that such 

disability beneficiary Is no longer physically or 

mentally incapacitated for the performance of duty, 

or that such disability beneficiary 18 engaged in 

or Is able to engage in a gainful occupation, and 

should the State Board of Trustees by a majority 

vote concur in such report, then the amount of 

his allowance shall be discontinued nor be reduced 

to an amount by which the amount of the salary 

earned during his latest year of creditable service 

exceeds his present earning capacity. 

In partial answer to 

vised that under Subsection ?(a 7 

our first question, you are ad- 

, quoted supra, as applied to a 

person under the age of 60, if the Medical Board certifies that 

the disability beneficiary is engaged In or IS able to en~gage In 

a gainful occupation, and the Board of Trustees 

vote concurs In such report, the amount of dlsab 

shall be reduced or discontinued as the statute specifies. Such 

reduction or dlscontlnuance 1s thus a matter for the exercise of 

discretion 'by the Board of Trustees , within the limits established 

by the statute. 

With regard to your remaining questions, your office has 

advised us that the following facts give rise to these questlonsr 

A school bus driver has been employed for 

less than 10 years, became physically disabled, 

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Hon. Frank M. Jackson, page 4 (M-64) 

and retired under the provisions of Article 

2922-1(a), V.C.S. After he passed the age of 

60, he was elected to a political office which 

pays him more than his previous salary as a 

school bus driver. 

We note that Subsection l(b), quoted supra, applies 

to persons who have more than 10 years of service, and provides 

for a conclusive presumption of continuing total dlsablllty for 

those persons past the age of 60. This pre,sumptlon is not expressly stated In Subsection l(a), but It is our view that It 

nevertheless exists for persons who retire, under this provision, 

for the reason that Subsection 2 operates to exclude persons 

past 60 from the requirement of periodic medical examinations. 

Since there is no requirement for periodic medical review for any 

person past 60, regardless of the provision he may have retired 

under, It is our view that all disability retirees past the age 

of 60 are conclusively presumed to be totally disabled. 

Notwithstanding the foregoing, the statute makes It 

incumbent upon the Medical Board and the Board of Trustees to 

determine whether a disability beneficiary is engaged In a galnful occupation. We have been advised by your office that the 

Retirement System requires each disability beneficiary to file 

an annual statement of earnings. These statements are delivered 

to the Medical Board9 which In turn certifies them to the Board 

of Trustees. If the Board of Trustees by a majority vote concurs 

in such report by the Medical Board, the amount of the disability 

allowance 1s reduced or discontinued In the manner prescribed In 

Subsection 2(a). 

We are of the opinion that then above-described procedure 

accurately tracks the requirements of the statutes, fulfilling both 

the letter and intent thereof. The statute Is so constructed that 

persons over 60 are not subject to periodic medical examinations, 

but are subject to an annual employment Income review, regardless 

of which dlsablllty provision they retired under. If such review 

discloses an employment income, the disability allowance to such 

persons is properly subject to reduction or discontinuance. In 

specific answer to your second questlonP you are therefore advised 

that the fact that a person receiving disability benefits Is past 

60 does not permit him to be gainfully employed without being subject to reduction or discontinuance of his disability benefits. 

SUMMARY 

Under Article 2922-1, Section 6, V.C.S., 

if a person receiving dlsablllty benefits from 

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. . 

Hon. FrankM. Jackson, page 5 (M-64) 

the Teacher Retirement System becomes engaged 

in a gainful occupation, the amount of his 

disability allowance may be reduced or dlscontinued in the manner prescribed in the statute. 

The fact that a person receiving disability 

benefits Is past the age of 60 relieves him of 

the necessity of undergoing periodic medical 

examinatlans, but does not permit him to be 

gainfully employed without being subject to 

reduction or discontinuance of his disability 

benefits. 

very truly, 

General of Texas 

Prepared by Malcolm L. Quick 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

W. V. Geppert, Co-Chairman 

Pat Bailey 

John Grace 

Robert Flowers 

John Banks 

STAFF LEGAL ASSISTANT 

A. J. Carubbl, Jr, 

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