                                   December     29,   1971



Hon. Frank >I. Jackson                    Opinion     No.    M-1027
Executive    Secretary
Teacher   Retirement     System           Re:    Questions   relating   to the
    of Texas                                     Teacher   Retirement   System
Lowich Building                                  and the Optional     Retirement
Austin,   Texas     78701                        Program.

Dear    %r.   Jackson:

               Your request    for     an opinion       on the    above      subject   matter
reads    in   part as follows:

                “A ‘faculty      member’ in an institution             of
        higher     education     in Texas elected          to go to the
        Optional      Retirement     Program as provided           by Title
        3, Chapter        Sl, Subchapter      G of the Texas Edu- ~.
        cation     Code (S.B.      292, 60th Legislature,            1967).
        He later      changed    to a position,         still   in an in-
        stitution       of higher    education      in Texas,      which is
        not classified        as ‘faculty      member’ and became a
        member of the Teacher           Retirement        System as pro-
        vided     in Attorney      General’s     Opinion      No. bl-647.
        This same employee          has again      been changed       to a
        position      which can be classified             as ‘faculty      mem-
        ber.’       Based on this      information        we request      your
        opinion      on the following        questions.
               II1.    Is the employee    of the institution                of
        higher     education  described     above required             to   re-
        main in the Teacher       Retirement     System?
               II2.      Ifyour answer to Question            1 is in       the
        negative,        mayhe again  return to the           Optional       Re-
        tirement      Program?

               “3.    If the answer to Question      2 is             in the
        affirmative,       is he required  to return   to             the
        Optional     Retirement   Program?




                                           -5008-
Hon.    Frank   M. Jackson,       page   2      (M-1027)



               “The second       situation        involves    a person    who
        was employed       in an institution            of higher   education
        in Texas as a ‘faculty             member’ with an opportunity
        made available         to him to become a member of the
        Optional     Retirement       Program.        This faculty     member
        did not elect        to become a member of the Optional
        Retirement     Program until           the time permitting        him
        to make such an election               had expired.       He there-
        fore   continued       to be a member of the Teacher              Re-
        tirement     System.       This     ‘faculty      member’ has now
        moved to another          institution        of higher    education
        in Texas.      We respectfully            request    your opinion     on
        the following        question.
                1,4.    Is a ‘faculty     member’ whose time for
        electing      to become a member of the Optional            Re-
        tirement      Program has expired      again   eligible     to
        elect     to become a member of the Optional            Retire-
        ment Program as a new employee            in another     insti-
        tution      of higher   education    in Texas?

                “The third    situation     involves      the opposite     of
        the one outlined        above.     A ‘faculty      member’ in an
        institution     of higher      education     in Texas     elected    to
        become a member of the Optional              Retirement      Program.
        He has now moved to another            institution      of higher
        education    in Texas still        as a ‘faculty      member.’
        The question      is.
                I,5. Is a ‘faculty     member’ who has elected      to
        become a member of the Optional         Retirement    Program
        eligible   to elect    to become a member of the Teacher
        Retirement     System as a new employee       of another   in-
        stitution    of higher    education   in Texas?”

                In Attorney      General’s       Opinion   M-647    (1970)    the   Summary
reads    :

                “Article    2922-1.03,    V.C.S.,    requires    all
        persons     employed    as teachers     or auxiliary     em-
        ployees     of an institution       of higher    education
        to be members of Teacher          Retirement     System of
        Texas unless       they are members of Optional          Re-
        tirement      Program.




                                             -5009-
.   -




        Hon.   Frank     Fl. Jackson,      page    3     (M-1027)



                       “Article     2922-li.       V.C.S.,      provides an Optional
               Retirement       Program for        ‘faculty      members’ only as
               defined      in said   statute.

                        “Former    ‘faculty     members’ who no longer      meet
               definition       of ‘faculty      member’ are required      to
               rejoin      Teacher    Retirement     System as provided      for
               under Article         2922-1.03,     2922-1.04   and 2922-2.05
               V.C.S.      but said     former   faculty    members are not
               eligible       to receive     credit    with the Teacher    Re-
               tirement       System of Texas for any service          during
               which time they were members of the Optional                  Re-
               tirement       Program.”

                        The controlling        statute  is        Section      5 of   .Irticle    2922-li,
        Vernon’s       Civil  Statutes,       which reads:

                        “A faculty      member (including             one SO employed
               on the effective           date of this         Act)     \<ho becomes
               eligibles     to pa.rticipate          in the Optional          Retirement
               Program and \iho is a member of the Retirement                           Sys-
               tem is hereby         extended       the option        of continuing        his
               membership       in the Retirement             System or participating
               in the Optional          Retirement        Program and retaining               a
               limited     membership         in the Retirement            System as
               hereinafter        set forth.          A faculty       member who is
               eligible      to participate           in the Optional          Retirement
               Program on the date the Optional                      Retirement      Program
               becomes     available        at the institution             of higher
               education       at which such faculty               member is employed,
               no later      than the 1st day of August of the calendar
               year following          the date on which the Optional                    Re-
               tirement      Program becomes            available       at the insti-
               tution     of higher       education        at which such faculty
               member is employed,              shall    elect     to participate         or
               not to participate             in the Optional           Retirement       Pro-
               gram.      A faculty       member who becomes             eligible      to
               participate         in the Optional          Retirement        Program
               subsequent        to the date on which the Optional
               Retirement        Program becomes           available       at the in-
               stitution       of higher        education      at which such
               faculty      member is employed             shall     make such
               election      within      ninety      (90) days follouing            the
               date on which such faculty                  member becomes         eligible
               to participate          in the Optional            Retirement      Program.



                                                       -5010-
Hon.   Frank   M. Jackson,       page   4      (M-1027)



       A  faculty     member exercising          the option     to partici-
       pate    in the Optional        Retirement      Program as afore-
       said    shall   not thereafter        be eligible       for member-
       ship    in the Retirement         System except       as a limited
       member pursuant         to Section       7 hereof    unless   such
       member ceases        to be employed         by an institution        of
       higher     education      and becomes       employed   by the
       Texas Public        School   System other        than in an in-
       stitution      of higher     education.        A faculty     member
       not exercising         the option      to participate       in the
       Optional      Retirement     Program      as aforesaid      shall
       be deemed to have chosen             to continue      membership
       in the Retirement          System    in lieu     of exercising
       such option       to participate         in the Optional       Retire-
       ment Program.”

               It is our opinion      that    the provisions     of Section      5,
above    quoted,     do not authorize      a series   of elections       between    the
retirement       systems,  but rather      authorize    eligible    persons    to
exercise     such option    only   once,    and during      the prescribed     period
stated    therein.

             Your fir~st’three       questions     are accordingly      answered   by
the following       sentences.      An employee      of an institution      of higher
education    described      in your first      situation    is required     to remain
in the Teacher       Retirement     System.      Such employee     may not again
elect    to participate       in the Optional      Retirement    Program.

              In answer to your fourth      question     you are advised
that   a faculty   member whose time for       electing     to become a member
of the Optional      Retirement   Program   has expired      may not at a sub-
sequent    date elect    to become a member of the Optional          Retirement
Program    as a new employee     in another    institution     of higher    edu-
cation   in Texas.

             Likewise,    in answer    to your fifth   question!      a faculty
member who has elected        to become   a member of the Optional         Retire-
ment Program is not eligible         to become a member of the Teacher
Retirement    System as a new employee        of another   institution      of
higher   education     in Texas.

                                   SUMMARY

              Section    S of    Article      2922-li,   V.C.S.,      au-
       thorizes     a faculty     member      of an institution        of




                                            -501 l-
                       .
              -.

    .   ..*        ’
.




                           Hon.   Frank   M. Jackson,    page   S      (M-1027)



                                  higher     education    to make only one election      con-
                                  cerning     whether    such faculty   member desires     to
                                  participate       in the Optional   Retirement    Program
                                  or chooses      to continue    membership   in the Teacher
                                  Retirement      System.




                           Prepared    by John Reeves
                           Assistant    Attorney General

                           APPROVED:
                           OPINION COMblITTEE

                           Kerns Taylor,    Chairman
                           W. E. Allen,    Co-Chairman
                           Pat Bailey
                           John Banks
                           Harriet   Burke
                           James Quick

                           SAM MCDANIEL
                           Staff Legal Assistant

                           ALFRED WALKER
                           Executive Assistant

                           NOLA WHITE
                           First Assistant




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