                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 mem-
    ber or (where the member 1s unable to make ap-
    plication) 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 appllca-
    tlon, retire such member upon the applicable dls-
    ability 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 dls-
    ability retirement benefit as follows:
         "(a) If the member has less than ten (10)
    years of creditable service at date of such retlre-
    ment, 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 mem-
    ber 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, whlch-
    ever amount Is greater, for the duration of his
    disability; and In the event the disability re-
    tirement occurs after or shall continue until
    such person attains sixty (60) years of age,
    the total disability shall thereafter be con-
    clusively 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 examlna-
     tion 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 dls-
     continued 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 norbe 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 our first question, you are ad-
vised that under Subsection ?(a7 , 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~gageIn
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 'bythe 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,sumptlonis not ex-
pressly 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 galn-
ful 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 thenabove-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 sub-
ject 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 dls-
      continued 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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