### E NEU GENERAL F XAS

April 27,,1967

Hon. Frank M. Jackson OpinionNo. ~-64 Executive Secretary Teacher Retirement System Re: Whether a person receiving of Texas disabilitybenefits from Lowlch Building the Teacher Retirement Austin, Texas 78714 System, who becomes engaged In a gainful ocoupatlon, shouldhave 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 Systembe 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 QuestionNo. 1 Is in the affirmative,would the fact that the person receiving disabilitybenefits from the Teacher Retirement System Is past age sixty (60)permit him to be employed In a gainful occupationwithout suchbenefits 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 TexasD Section 6 thereof establishes a disabilitybenefit, and

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sets forth the terms and conditionsunder which suchbenefits may be paid. Although lengthy, It is necessary that we quote the major portion of Section 6:

"Sec. 6. 1. Upon application of themember or (where themember 1s unable to make application) of his employer or legal representative acting on behalf of themember, the State Board of Trustees may, not less than thirty (30)nor more than ninety (90)days after filing of said appllcatlon, retire suchmember upon the applicabledlsability benefit set out below, provided that the Medical Board, after a medical examination of suoh member, shall certlfv that suchmember ismentally or physically disabled for the furtherperformance of duty and that such dlsablllty 1s likely to be permanent. In such event, themember shall retire subject to the provisions of this Act, upon a dlsability retirementbenefit as follows: "(a) If themember has less than ten (10) years of creditable service at date of such retlrement, he shallbe paid a disabilitybenefit 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 renderedby suchmember 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 continueuntil such person attains sixty (60)years of age, the total disability shall thereafterbe conclusivelypresumed continuous for the remainder of his life.
"2. BeneficiariesRetired on Account of Disability.
'Onceeach year during the first five (5) years followingretirement of a member on a

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### (M-64)

disability retirement allowance, and once in every three-yearperiod thereafter, the State Board of Trusteesmay, and upon his application shall, require any disabilitybeneficiarywho 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 placemutually agreed upon,by a physician or physicians designatedby the Board of Trustees, Should any dlsabillty beneficiarywho has not yet attained the age of sixty 

### (60)years refuse to submit to at least onemedical examination In any such periods by a physician or physicians designatedby the State Board of Trustees, his allowance shallbe dlscontinueduntil his withdrawal of such refusal, and should his refusal continue for one year, all his rights In and to his allowance shallbe revoked by the State Board of Trustees. "(a) Should the Medical Board report and certify to the State Board of Trustees that such disabilitybeneficiary Is no longerphysically or mentally incapacitated for the performance of duty, or that such disabilitybeneficiary 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 discontinuednorbe 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 ?(a7our first question,you are ad-

, quoted supra, as applied to a person under the age of 

### 60, if the Medical Board certifies that the disabilitybeneficiary is engaged In or IS able to en~gageIn a gainful occupation,and the Board of Trustees vote concurs In such report, the amount of dlsab shallbe reduced or discontinued as the statute specifies. Such reduction or dlscontlnuance 1s thus a matter for the exercise of discretion 'bythe Board of Trustees,within the limits established by the statute.

With regard to your remaining questions,your officehas advised us that the following facts give rise to these questlonsr

A schoolbus driver has been employed for less than 10 years, became physically disabled,



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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 officewhich pays him more than his previous salary as a schoolbus driver.
We note that Subsection l(b), quoted supra, applies to persons who have more than 10 years of service,and provides for a conclusivepresumption 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 excludepersons past 

### 60 from the requirement of periodicmedical examinations. Since there is no requirement for periodicmedical review for any person past 

### 60,regardless of the provisionhe may have retired under, It is our view that all disabilityretirees past the age of 

### 60 are conclusivelypresumed to be totally disabled.

Notwithstanding the foregoing, the statutemakes It incumbentupon the Medical Board and the Board of Trustees to determine whether a disabilitybeneficiary is engaged In a galnful occupation. We have been advised by your office that the Retirement System requires each disabilitybeneficiary 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 themanner prescribed In Subsection 2(a).

We are of the opinion that thenabove-describedprocedure accurately tracks the requirements of the statutes, fulfillingboth the letter and intent thereof. The statute Is so constructedthat persons over 

### 60 are not subject to periodicmedical examinations, but are subject to an annual employment Incomereview, regardless of which dlsabllltyprovision 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 questlonPyou are therefore advised that the fact that a person receivingdisabilitybenefits Is past 

### 60 does not permit him to be gainfully employedwithoutbeing subject to reduction or discontinuance of his disabilitybenefits.
SUMMARY Under Article 2922-1, Section 

### 6,V.C.S., if a person receiving dlsabllltybenefits 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 allowancemay be reduced or dlscontinued in themanner 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 periodicmedical 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 Preparedby Malcolm L. Quick AssistantAttorney 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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