July29,1971

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 teachermay return to teaching and again qualify for retirement so that his additiona years of teaching are computed in calculatinghis new retirement status.
Your recent letter requesting the opinion of this office concerning the referencedmatter states, in full, as follows:

"We requestyour opinion on the followingques**tion :**  "'Does Section 3,25(b) of the Texas Education Code (Chapter889, 61st Texas Legislature, Regular Session, 1969) as amendedby House Bill 279, 62nd Texas Legislature,Regular Session, 1971,permit a teacherwho has retired to return to teaching in Texas, work five,(5)consecutiveyears and repay the amount of retirement benefit which he had received plus interest 'andmembership fees, and again become a member of the Retirement System so that the additional years of teaching service after retirementwould be used in recalculatinghis retirementbenefit?' "TheTeacher Retirement System has interpreted Section 3.25(b) to permit reinstatementof membership servicewhich was terminatedby withdrawal of deposits or by absence from servicebut not to permit a person who had already retired and begun receiving retirement benefits to again reinstatehis membership.

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

"Mr. *, retired under the provisions of the Teacher RetirementAct 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 forfeitinghis retirement benefits during the time he was employed. He has continued to work for three (3)consecutiveyears. Mr. * contends that after he has returned and worked forve (5)consecutiveyears, 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 retirementbenefits received, and have his retirement recalculated. "TheBoard of Trustees of the Teacher Retirement Systemhas disallowedMr. * request but agreed to ask for an official interpretation of Section 3.25(b). "TheBoard's decision to deny the requestwas based in part on the followingpoints: "1. The Teacher Retirement Law provides that the date for retirement for any eligiblemember 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 retirementprovisions are binding, certain and effective on that date. "3. The Board of Trustees has adopted as part of their codified Rules and Regulations, Section 15.63which states: "'The 'Applicationfor Retirement and Option Selection' formmust be filedwith the Teacher Retirement System on or before the date of retirement for standard annuity. An applica-

* Specific identificationomitted in this opinion.

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

tion for retirementmay be revoked at any time before the retirementdate. The option selection cannotbe changed after the last date for filing except by revoking the retirement. It can never be changed or the application revoked after the 'dateof retirement.' "4. Section 3.37 of the Texas Education Code appears to definitelyprohibit a retiredperson 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): "Anypersonwho terminatesor has terminated membership in the retirement system by withdrawal of deposits or by absence from service shall have the privilege of reinstating such terminatedmembership by rendering service for five subsequent consecutive creditableyears and. depositing the amountwithdrawn plus membership fees for the years duringwhich membershipwas terminatedplus a reinstatement fee of two and one-half percent per annum from the date of withdrawal to date of redeposit. The reinstatement feesshall be credited to the state contribution account." Sec. 3.37: "EMPLOYMENTAFTER RETIREMENT.~ (a) Any person receiving a service retirementbenefit from the retirement systemmay be employed in the public schools of Texas: "(1)on a part-time day-to-daybasis only not to exceed 80 school days in any one sachoolyear as a substitute for an employeewho 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-thirdbasis if the retiredmember is over age 60. "(b)This employmentwill not affect any person's rights to any benefits under the retirement system. However, it will not entitle a person to additional creditable serviceunder the retirement system and the person so employed shall not be required tomake further contributions to the system. ,I

. . . "(d) a person receiving a service retirement benefit from the retirement systemwho is employed in any position in the public schools of Texas except as provided in this section, shall forfeit all retirement beinefits for anymonth in which such employment occurs. Employmentwhich begins as substitutingmay become permanent employment. A person who substitutes on a day-to-daybasis in a regularposition for an absent employee formore 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 forfeitshis retirement benefits for all months of employment in that position." (Emphasisadded.)
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 reinstatmentof membership in the Teacher Retirement System'after the rendering of service for five consecutive creditableyears are not applicable to persons who have retired from teaching and are eligible to'receive retirementbenefits.

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 retiredpersons teaching in Texas schools are not entitled to additional creditable service under the Teacher Retirement System.

Accordingly, you are advised that the additionalyears of teaching service renderedby Mr. after his retirement

* See this note, supra. -4458-,

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

cannot be used for purposes of recalculatinghis retirement benefits.
SUMMARY

Section 3.25(b),Texas Education Code, providing for reinstatementof terminatedmembership 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 retirementbenefits. Section 3.37(b),Texas Education Code, does not entitle a formerly retired teacherwho is now teaching again to have the additionalyears of teaching service rendered after the date of his retirement used in recalculatinghis retirementbenefits.
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 ExecutiveAssistant
NOLA WHITE First Assistant -4459-