Honorable        Uortimer   Brown
hecutive         Seooe~
F,;r           zement       Sydem   OS Texaa
           .
Dear Sir1                               Opinion lo. O-3399
                                        %r Uhether oP not persona engaged by
                                              the Federal Govemment in the emergent;
                                              relief  lducatlonel program are ewlble
                                              to participate   ln the teacher retlre-
                                              ment eyetern OS Texeu.
                    We received your letter dated April    9, 1941, which is eelf-
explanatory,        end reedl), in part, aa follo~sr
                 “1, Are persona who are engaged In the emer-
      gency relief   educational program *here tesohere un-
      able to get employment ln regular sohoole were employ-
      ed under the relief program at the time the teacher
      retirement eyrtem wan voted ln Texae, ellglble    for
      pa;a:;:patlon   ln the teacher retirement ryetem of

               “2. Are persona non engaged or heretofore en-
      gaged ln oduaatlonal work for the Federal Govermtlent
      whereln the full malery Is paid to said employee by
      the Bederal Government, but the work of the employee
      is perrormed ln public school buildings and *here
      materiels of the public schools are used, lllglble
      for participation  in the teacher retirement system
      of Texae?
                 “3.  If the answers to Question No. 1 and No.
       2 are ln the efftiatlve,    will you advlae If it
       should : be the duty of the lndlvlduel to now pay 5
       per cent of his salary 83 earned from the Federal Gov-
       ernment or is he ellglble   to retirement without thle
       payment?
                “This department has been operating for three
       and one-half years with the belief that the prQvlslon
       In the Constitution of the State, Article 3, Section 488
       whlah reads a8 follows~
                 “I In addition t> the powers given to the Leg-
       lclature,    under &ctlon 38 of Article 3, It shall hr\ve
       the right to levy f::::es to provide a Xetlrcment -Fund
       for persons employed i.n public schools, colleges and
       unlveraitles     supported wholly or partly by the State;
       - . - . . _ t’
Honorable Wgrtlmer &own, P8ge 2                                    o-3399


                “and the deflnltlone OS the tenw @teacher’
      and ‘public   rohooll  u found In Seotlm  1, Subeec-
      tlon 2 4nd 3 of the Tewber Retirement Aot which
      read u f011owr1
              “~Publlc Sahool’ ehall meen any eduoatlonel
      organlwtlon   mapported wholly or partly by the State
      under the authority and mpervlrion   of a logally
     oonetituted board ob rgenoy having authority lnd re-
     ~ponaibllity for any funetlon of public educratlon.
                “~Toaaher~ &all mean a pereon employed on
    a iull-time     regular eelmy barfe by boards of eom-
    non lrchool dlstclotr       boards of lndependmt sahool
    dirtclotr,    county school boardr, Retirement Board
    of Truetees, State Board of Education and State De-
    partment of !Zducatlon, boards of regents of colleges
    and univerrities,       and any other legally constituted
    board or agency of an lduoatlonal institution         or
    orsuliwtion       ruppor\ted wholly or partly  by the State.
    In all eaaea o? doubt, the Retirement Board of
    Txwtees, hereinafter defined,        shall determine
    g;ther     & perron    18 a tesaher 06 defined  in thle
            A teacher shall mean a permon render         servloe
    to &ganlwd        public eduaatlon In proferslone9    and
    buelnem admlnibtratlon and supervlslon and In instruc-
    tion    In public echoola as defined in subsection (2)
    of tjtls section.
               “do not permit a pereon employed in eduoa-
     tional work OS the Bederal Qovertxnent and receiving
     all of hlr salary directly  from the Federal Qovern-
     ment to be considered 86 ellglble    for participation
     In the Teacher Retirement Program of Texar.       It le
     my underrtandlng that employees of the Bnergency
     Education Program ere empoyeerr of the Federal Qovern-
     ment and are relmbur6ed entlrely and directly      by
     the Federal Qover,nment, It Is alao my understanding
     that Bone of these emergency education employee@ are
     granted permlselon to hold their c;iaauea In churches
     and various other >U.ces.    . . , .
               Subsection 5 of Section        1 of the Teacher Retirement Act,
codified   ln Vernon’s Annotated Civil        Statutes as Article 2322-1, reado a~
follownl
               “(5)    ‘&ployer’    shall
                                       mean the State ol Texas
      and any of ltr   deeigneted        or agencler, with
                                     agents
      reeponslblllty  and authority for public educritlon, such
      as the commonand Independent school boards, the boards
      of regents of state colleges and unlversitlen,      the county
      school boarda,  or any other  agency of and  within   the
      Stoto by which a ijerson may be employed f3r service In
      public education.
Ponoqabla   Mortlmor   &own,   -0   3                              s-3399


                 8ubaaotlon 1 of 8eotion     3 o? aald Aat made 88
followa:
                ”(1) All persona who ara toaohara on tha date
      aa of which the Ratireiaant System la latabllahed ahall
      bacomo mambera u of that 88t8 a8 a oondltlon    of their
      mloyment unleaa within a period of ninety (90) day8
      after September 1, 1937, any much teacher till    tll8
      with the State Board of Truetee on a form preaorlbed
      by auoh Board, a notloo of hi8 election not to be
      oovered In the membership of the System and a duly ax-
      eouted waiver of all preaant and proapaotlva beaaflta
      whloh would othomlac Inure to him on aooount of hla
      participation  in tha Retireinen: System.”
               As we underatand the recta ooncernlng the persons mentioned
In your letter,   they are employed directly by the Federal Government.
We also underetand thalr eelary la paid directly b; the Federal Govern-
ment and their services are controlled by a Federal Agency: and not by
a State  Agenoy. For thee@ x%aaona we do not believe that the peraona
mentioned In your Slrst quartion are teachers 88 that term la defined
ln the Act, 8upr8, and they are not therefore,     el&lble  to pertlclpate
in the teacher retirement ayeten.    &or further re88on, we note that Sub-
aectlon 1 of Section 3 of the Aat, aupra, provides that pereona who are
teachers at the time of the eatabllshment of the retirement system shall
become subject thereto ea acondition    of their employment unless they
file a rejection   within a period of time. We do not believe the Legls-
lature intended to so condition the employnrnt of a person who la not
ln the employment of any State Agency, but, on the contrary,     la In the
employment of the Federal Government.
              In answer to your eecond question, we arc of the opinion
that the persona mentioned are not teachers as thet term is uaed in the
Act notwithstanding they may pertozu their wmk in a public school
building.   Thla Is for the reason that they are not employed by any
State Educational Agency~but are employed directly  and exclusively  k
the Federal Goverrrment.
                Since we answer your first      two questions   in the negative,
WE   do not amwcr   your third queetion.
                                           Yours very truly


                                           By s/Lee Shoptaw
                                                Lee Shoptaw
LSt dbrwc                                        Assistant

APPRGVRD   APRIL 25, 1941
a/ Grwer Sellers
XRST ASSISTANT
ATTOFL’iZY GlZ.WiML


APPROVZD
       Cpinlon Comlittee        3y s/NE      Cihakmin
