July 29, 1971 

Bon. Frank M. Jackson 

Executive Secretary 

Teacher Retirement System 

of Texas 

Lowich Building;Third Floor 

314 West Eleventh Street 

Austin, Texas 78701 

Dear Mr. Jackson: 

Opinion No. M-914 

Re: Whether,, - * 

Section 3.25(b), Texas 

Education Code, a retired 

public school teacher may 

return to teaching and 

again qualify for retirement so that his additiona 

years of teaching are computed in calculating his 

new retirement status. 

Your recent letter requesting the opinion of this office 

concerning the referenced matter states, in full, as follows: 

"We request your opinion on the following question : 

"'Does Section 3,25(b) of the Texas Education 

Code (Chapter 889, 61st Texas Legislature, 

Regular Session, 1969) as amended by House Bill 

279, 62nd Texas Legislature, Regular Session, 

1971, permit a teacher who has retired to return to teaching in Texas, work five, (5) consecutive years and repay the amount of retirement benefit which he had received plus interest 

'and membership fees, and again become a member 

of the Retirement System so that the additional 

years of teaching service after retirement would 

be used in recalculating his retirement benefit?' 

"The Teacher Retirement System has interpreted 

Section 3.25(b) to permit reinstatement of membership 

service which was terminated by withdrawal of deposits 

or by absence from service but not to permit a person 

who had already retired and begun receiving retirement 

benefits to again reinstate his membership. 

-4455- 
Hon. Frank M. Jackson, page 2 (M-9*4) 

"Mr. *, retired under the provisions of the 

Teacher Retirement Act from the Teacher Retirement 

System on May 31, 1968, and three (3) months later 

returned to full-time teaching in the * Independent School District, thereby forfeiting his retirement 

benefits during the time he was employed. He has continued to work for three (3) consecutive years. Mr. 

* contends that after he has returned and worked 

forve (5) consecutive years, he should, under the 

provisions of Section 3.25(b) of the Texas Education 

Code, be permitted to make deposits for these five (5) 

years of teaching since retirement, repay the amount 

of retirement benefits received, and have his retirement 

recalculated. 

"The Board of Trustees of the Teacher Retirement 

System has disallowed Mr. * request but agreed 

to ask for an official interpretation of Section 3.25(b). 

"The Board's decision to deny the request was based 

in part on the following points: 

"1. The Teacher Retirement Law provides that 

the date for retirement for any eligible member shall 

be the last day of any month in which he makes written 

application to the State Board of Trustees. 

"2 . The Attorney General has ruled in Opinion No. 

C-201, dated January 10, 1964, that after the effective 

date, retirement is an accomplished fact and that the 

retirement provisions are binding, certain and effective on that date. 

"3. The Board of Trustees has adopted as part 

of their codified Rules and Regulations, Section 

15.63 which states: 

"'The 'Application for Retirement and Option 

Selection' form must be filed with the Teacher 

Retirement System on or before the date of 

retirement for standard annuity. An applica- 

* Specific identification omitted in this opinion. 

-4456- 
Hon. Frank M. Jackson, page 3 (M-914) 

tion for retirement may be revoked at any 

time before the retirement date. The option 

selection cannot be changed after the last 

date for filing except by revoking the retirement. It can never be changed or the 

application revoked after the 'date of retirement.' 

"4. Section 3.37 of the Texas Education Code 

appears to definitely prohibit a retired person from 

returning to teaching, receiving additional retirement credit and having his benefits recalculated." 

The Texas Education Code, as amended by House Bill 279, 

62nd Legislature, Regular Session, 1971, provides, in its relevant 

sections, as follows: 

Sec. 3.25, subdivision,(b): 

"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 the 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 fees shall be credited to the state 

contribution account." 

Sec. 3.37: 

"EMPLOYMENT AFTER RETIREMENT.~ (a) Any person 

receiving a service retirement benefit from the 

retirement system may be employed in the public 

schools of Texas: 

"(1) on a part-time day-to-day basis only not 

to exceed 80 school days in any one sachool year as 

a substitute for an employee who is absent from duty: 

"(2) as a substitute in a vacant position until 

such position can be filled, but not to exceed 30 

days, but any substitute employment in a vacant position shall be deducted from the 80 days permitted as 

a substitute for an absent employee; or 

-4457- 
Ron. Frank M. Jackson, page 4 (M-914) 

"(3) on as much as a one-third basis if the 

retired member is over age 60. 

"(b) This employment will not affect any person's 

rights to any benefits under the retirement system. 

However, it will not entitle a person to additional 

creditable service under the retirement system and 

the person so employed shall not be required to make 

further contributions to the system. 

,I . . . 

"(d) a person receiving a service retirement 

benefit from the retirement system who is employed 

in any position in the public schools of Texas except 

as provided in this section, shall forfeit all retirement beinefits for any month in which such employment 

occurs. Employment which begins as substituting may 

become permanent employment. A person who substitutes 

on a day-to-day basis in a regular position for an 

absent employee for more than 80 school days or for 

more than 30 school days in a vacant position and 

then continues in the' same position shall be considered to have been a regular employee since the 

first day of employment and forfeits his retirement 

benefits for all months of employment in that position." (Emphasis added.) 

We are of the opinion that the provisions of Section 

3.25(b) and Section 3.37, both quoted, supra, can be harmoniously 

construed. Using such rule of construction, we hold that the 

provisions of Section 3.25(b) governing reinstatment of membership in the Teacher Retirement System'after the rendering of service for five consecutive creditable years are not applicable to 

persons who have retired from teaching and are eligible to'receive 

retirement benefits. 

Therefore, Mr. ? claim must be determined on the 

basis of the provisions of Section 3.37. Section 3.37(b), 

quoted supra, clearly states that retired persons teaching in 

Texas schools are not entitled to additional creditable service 

under the Teacher Retirement System. 

Accordingly, you are advised that the additional years 

of teaching service rendered by Mr. after his retirement 

* See this note, supra. 

-4458- 
, 

. 

Hon. Frank M. Jackson, page 5 (M-914) 

cannot be used for purposes of recalculating his retirement 

benefits. 

SUMMARY 

Section 3.25(b), Texas Education Code, providing 

for reinstatement of terminated membership in the 

Teacher Retirement System after the rendering of 

service for five subsequent consecutive creditable 

years, is not applicable to persons who have retired 

from the System and who are drawing retirement benefits. 

Section 3.37(b), Texas Education Code, does not 

entitle a formerly retired teacher who is now teaching again to have the additional years of teaching 

service rendered after the date of his retirement 

used in recalculating his retirement benefits. 

Yo very truly, 

Prepared by Austin C. Bray, Jr. 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

James McCoy 

Scott Garrison 

John Banks 

Jack Goodman 

MEADE F. GRIFFIN 

Staff Legal Assistant' 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

-4459-