Hon. B. B. Sapp
Director and Executive Secretary
Teacher Retirement System of Texas
Austin, Texas
                             Opinion No. V-366
                             Re:   V rlltlityof rule of
                                     !acher Retirement
                                   iidxm ooncernl=
                                     ,*ibility of em-
                                     .oyrre of State elee-
                                     Imynarj 3.n8tltutions
                                     I membership in the
                                     ,aehep R8tfiement
                                     ratem.
Dear Mrs. #SOP:
          We referherein to your lott#r 0s recent d8te
acbmowleUgea by the Attorney General on &gust 3, 1947,
from which we quote a8 follows:

           “Oa july 23rU the Beard ef Tru8tiea OS
     the Teacher Retirement Sfstsm Puleb thrt a8
     of September I, 1947, those employees Of’iState
     Elrramrynary ShnrtLtutlon8who are members of
     the Teacher Retirement Systuficont!f.nuetQ be
     conalaerea aa eligible ror mMshi9      in the
     Teacher Retirement 8ygsteman8 be P tained as
     membdrs of the Taacher Retlremant 8y8terpa8
     long is thay oacupf a porlttenin 84y Btate
     Eleemosynary rOstitutien d&&k ~88 orn8Zdered
     an eligible position for nemberclhlp II&the
     Teacher Retirement Syst8m prior t@ $I$tember
     1, 1947; and, any employee of a St*te tieemosye
     nary Institution begi-      w@.s   rzitfor the
     first tim(,after (Ieptember1, &#r7, be con-
     slaarea aa eLiglbla for me&w?aWp    in the Teach-
     er Retirement Systrm if saeh emplOp    ia Bc-
     tivrlr engaged in teaching of
     teaCh%ng; rO&, if ruch tul@bgae
     In active teaching he shall not be o?nsidered
     eligible for membership in the TeaclierRetire-
     ment Bljstem.
Hon. B. B. Sapp - Page 2   (V-366)



          "This rule was passed after the State
     Employees' Retirement System was authorized.
     The Board of Trustees would like to have
     your opinion relative to their authority
     for passing said rule determining eligi-
     bility of employees of State Eleemosgnarg
     Institutions with reference to the Teacher
     Retirement System subsequent to September 1,
     1947. . . .n
           Article 2922-1, Section 1, par. (6), V.C.S., de-
fines "member" In the Teacher Retirement System as any
teacher included in the membership of the System as pro-
vided in Section 3 of this Act. Article 2922-1, Section
1, par. (3), defines "teacher" as used In Section 3 as
follows:
          “(3)  'Teacher' shall mean a person em-
     ployed on a full-time, regular salary basis
     by boards of common school districts, boards
     of independent school districts, county
     school boards, Retirement Board of Trustees,
     State Board of Education and State Depart-
     ment of Education, boards of regents of
     colleges and universities, and any other
     legally oonstltuted board or agency of an
     educational Institution or organization sup-




     struotion, in public schools as defined in
     ?3ubsectlon(2) of this SeCtiOn.” (Ihaphasis
     ours )
          Article 2666, V.C.S., providing for the crea-
tion of school districts for eleemosynary instltutlons,
reacts:
          'The State Board (of Education) is
     authorized to create new school districts
     at such of the several Eleemosynary Insti-
     tutions of this State, incluaing the State
     Orphan Home, or at any and all Orphan homes
ihi. 0. B. Sapp - Page 3   W-366)


     or like institutions that may be estab-
     lished by any Fraternal organization, or
     at any Institution for dependent or ae-
     llnquent children maintained by any County
     in this State; provided, that the number
     of children within the scholastic age in
     each instance be suf’flclentto ~justlfy
     such action. The terrltarlal limit8 in
     each case shall be co-extensive with the
     property lines of the instltutlooa.”
ana Article 2667 provides that such school districts,
when created,-.&all be controlled.as Sar as possible by
the law pertaining to inae endent school b;tstrtctsi
dr&gg v. Hill, 58 S.W. (267 150. Such school districts
cri%ted In the ele&mosynary institutions of this State
E&B ~@ubjeotto and entitled to the benefits of th&
%WWhsr ;Retlrement System of Texas.
           B B 168 Acts 1947 50th Leg
353 i ({b be’coipllei in Vernon: s Civil S&%e~‘~s%ti-
cl& 6228a) providing for the establishment of the EQ-
 &a$eeki Retirement System of Texas as of September 1
P947, guwfiaee’that a %embBr” shall mean anfremployei
ihuluded In the msmbership of the System as provided in
Be&Ah    3 of this Act, (Art. 6228a, Sea. 1, par. E).
Artilc,le6228a, Sec. 3, par. A, reads in part as follows:
           "Sec. 3. The membership of said Re-
     tirement System shall be composed as fal-
     lows :
           “A. All persons who are employees on
    : the date as of which the Retirement System
      Is established shall become members as of
      that date as a condition of their em loyment
   ; unless within a period of ninety (90P ,days
      after September 1, 1947, any such employee
      shall file with the State Board of TrUSteeS
      on a form prescribed by such Board, a notice
      of his election not to be covered ii~the mem-
      bership of the System and a duly exebuted
      waiver of all present and prospective bene-
      fits which would otherwise Inure to him on
      account of his participation in the Retlre-
      meht System. The following persons shall,
      however, not be eligible for participation
      in the Retirement System:
Hon. B. B. Sspp - Page 4   (V-366 1


          “1. . . . any person who is covere6 be
     the Teachers RettiQl88nt:_Qxstea.
                                     . .‘*(J&u-
     phasis ours)

and Section 1, par. C, of the Bmployees Retirement Act
defining “empl8yee” as used therein, pr8vldes that
“employee” shall not include any person who is cover84
by the T8acher Retirement System of the State of Texas,
          It is, therefore, cleaply and speclficall~
provided that any State employee who Is covered by the
Teacher Retirement System shall not be eligible for
membership in the *ployees’ Retlroment System.
           The provisions of the rule passed by the
Teaeher Retirement loaN on July 23, 1947, hereinabove
quoted, insofar as it pertains to employees of Stiate
EleemosJnory Institutions who are members of the Tuch-
er Retirement System prior to and on September &, 1947,
is, in all respects proper and legal ln the light ef
the above-quoted  statutes.
           In contemplation of the establishment OS the
Employees RetirQBent System as of September 1, %$+7,
the Teacher RetlPament Board also provided in it,8rule
passsd on July 23, 1947, that any employee of a State
EleemosJnUSJ Institution beginning e.mploymentfor:the
first time after September 1, 1947, be considered as
eligible for membership in the Teacher Retirement Sys-
ten if such employee Is actively -aged    In teaching
or supervision of teachers; anU if such employee is
not engaged in active teaching, he shall not be csn-
slderea ell(ible  for membership In the Teacher Retlre-
ment System. Ve find no conflict in the provisions of
this rule with either the Teacher Retirement Act or
the Employees Retirement Act, and are of the opinion
that ample authority rests in the Board OS Trustees of
the Teacher Retirement Systu8 to promulgate same by
virtue of the provisions of Section 1, par (3), Article
2922-1, v. c. 3.
                        SUMMARY
          The rule passea by the Board oS~Trus-
     tees of tke Teacher Retirement System of
     Texas on July 23, 1947, relative to the
     eligibility of e8~loysrs of the State Elee-
     mosynary Institutions to ne~bershlp ia the
Sm.                     5
      0. b. sapp - ~rig;e    (V-366)


      Teacher Retirement System after September
      1, $947, when the Bployess Retirement
      System may be established, is le@:sland
      proper, being in accordance with the pro-
      vl8lons of lCrtic1e2922-1, Sec. 1, par.
                   and Article 6228a Sec. 1,
      iii?:~%:'~,c.   3, par. A, V.&L
                                 Very truly yours
                            ATTORNRY GBtIpuL OF m



                            -I   Chester,E. Olllaon
cm:egt;ajm                       Assistant
