            E        OKNEY      GENERAL
                   OFTEXA~



                       August 6, 1948

Mrs, B. B, Sapp, Director    opinion No. Yr654
Teacher Retirement System
Austin, Texas                Re: The legality of refund-
                                 ing the balance of a
                                 teacherIs annuity when
                                 he has chosen to return
                                 from retiremsnt to ac-
                                 tive teaching.
Dear &a. Sapp:
           We refer to your letter request which states
in substance that a teacher accepted re ular service re-
tirement benefits from this departmentfugust 31, 1946.
He drew a regular monthly annuity until Octobe;htz,ii947,
when he returned to the teaching profession,
compliance  with Section 5, Subsection (1) of Article
2922-1, v. C, SO, the Teacher RetirementLaw, further
annuity was discontinued,
          When retirementbecame effective, the amount
of money standing to the credit of the teacher was $45gQ-
     Your records show that he drew in an annuity $219.-
zi'leaving a balance of $240,&L
          You stated that this is the first case that
you have had of a retired teacher returni to the teach-
                                         "&2,
ing profession subsequent to August 32, 19
          The teacher has asked for the refund of his
money and you request OUP interpretationand instruction
in this matter.
          Subsection (1) of Section 5 of Article 2922-1,
v, c. so, as amended by Section 3 of IL B, 602, 48th Leg-
islature,Acts 1943, and Section 6 of S, Da 282, 50th Leg-
islature, Acts 1947, reads in part:
     ,t
          ;Any member who has accepted service
     r%rement shall be ineligibleand disqual-
     ified to resume and/or continue teaching in
     the public schools of Texas, and also shall
     be ineligibleand disqualifiedto be other-
k-s. Be B. Sapp, page 2   (V-654)



    vise eml.oyed as,a teacher uador this Act;
    pro*ided, hovever, that duriw the present
    world conflict, oomonlg called 'World War
    II*, and for a period of twelve (12) months
    thereafter,a retired.nemberwho retired
    August 31, 1942, and prior thereto, ma on-
    ly such retired metier shall hot be lneli-
    gible aad disqualifiedas above stated but
    may be emplsyed as a teacher under the terms
    of this Act; (1e e provided fbther, that
    mj retired meaber who lccepts'e+logremt
    as a teacher, except In the pesont world
    cariliot and for twelve (12) months there-
    rfteP, as above specified, shall forfeit
    all rights a.8a retlrod  teacher and any
    and all claims to ray retirement benefits
    under thla Act; provided further, that
    every retired member is chapsea with the
    knowledge of all these provisions and by
    retuming to teaching sQal1 be deemed to
    have accepted the same.
          Prior to the amendment of Subsection (1) of .~
Section 5, k+ticle 2922-l'by H. B. 602, supra, XII1943,
the Teacher Retirement Law did not contain the prod.-
sions above quoted,or provisiona of like substance OP
         The effective date of H. B, 602 was l&y 28,
19 3.
-tort*
            This office In Opinion go. o-5097, approved
Febumzy 15, 1943, thus prior to the enactmeat of the
 rodsions    above quoted, advised that under the Teacher
Ii
 etiz!ement  Law as it thea existed, the Legislature id-
tended that a person retired for semice under said law
shall'notbe reemployed as a teacher in the public schools
of Texas, or as a teacher defined under the-Act. That
opinion also pointed out that It is settled,,  under auth-
o~itles   theein cited, that the State of Texas may pm-
scribe the qualificationsof teachers and name the con-
ditions under which the privilege of teaching may be exeF-
oisea, The Legislaturehas since announced that intention
in clear and unequivocal language by the addition to the
Teacher petlrerent Law of aubse uent amendmentsabove
quoted in H. B. 602 and S. Be 2%2, suppa, and has in addi-
tion theretoprovided that "any retired member who accepts
employmenta8 a teacher (excepting certain teachers de-
signated therein) shall forfeit all rights as a retired
teacher and l  nx,and all claim to any retirementbenefits
under the Act.
Mrs. B, B, Sapp, page 3   (V-654)


          The Legislature in Section 13 of Article 2922-
1, in the 1937 Act creating the Teacher Retirement Sys-
tem, reserved the right of ameadment, But even without
this reservation,the rule is that the right of a pen-
sioner to receive monthly payments from the pension fund
after retirement from service, or after his right to par-
ticipate in the fund has accrued, is predicatedupon the
anticipatedcontinuanceof existing laws, and is subor-
dinate to the right of the Legislatureto abolish the
pension system, or diminiflhthe accrued benefits of pen-
sioners thereunder 0 0      City of Dallas v0 Trammel,
129 Tex, 150, 101 S,W,($d) 1009 at 1013.
          Furthermore,we are advised that the teacher
in question,whenhe made applicationto be retired un-
der the Teacher Retirement Act, executed the required of-
ficial form therefor which contains this provision:
          "I am making applicationfor retire-
     ment benefits fully aware that
          'InAnymember who has accepted ser-
     vice retirement shall be ineligible and
     disqualifiedto resume and/or continue
     teaching in the Public Schools of Texas
     and also shall be ineligibleand dis-
     qualified to be otherwise $mployed as
     a teacher under this Act.D
Subsection (1) of Section 5, as amended, itself provides
that 'every retired member Is charged with the knowledge
of all these provisions and by retur#ing to teaching shall
be deemed to have accepted the same.
          We are advised that the teacher in question
was retired for service on August 31 1946. Those pro-
visions, therefore, in Subsection (3j of Section 5 re-
lative to teachers retired on August 31, 1942, and prior
thereto, would have no applicationto this teacher and
require no further considerationherein.
          Under the facts and expressed law stated here-
in, the retired teacher in question by his acceptance of
employment as a teacher In the public schools of Texas
subsequentto retirement for service has forfeited all
his rights to any and all claims to any retirement bene-
fits under the Teacher Retirement Act,
          It is well settled that the mere circumstance
Mrs. B. B, Sapp, page 4    (V-654)


that a part of the penalon fund la made up by deductions
from the a reed componsatioxi of employees does not in it-
self give &he pensioner a vested right in the fund, and
does not make It any’less a public fund subject to the
control of the Legislature. City of Dallas v. Trammel,
suprs . The Legislaturenot having provided that the con-
tributionsby way of deductions made from the compensa-
tion of a teacher and paid Into the Teacher Retirement
Fund should be refunded to a teacher retired for service
where that teacher after service retirenentresumes teach-
.ingin the public schools of Texas, in violation of the
provisions of Subsection'(3),Section 5, Article 2922-1,
as amended, no authority rests in the Teacher Retirement
System to award such refunds.
                          SUMMARY
             Where a teacher retired for service
        subsequentto August 31, 1942, the retfr-
        ed teacher by hie acceptance of employment
        as a teacher in the public schools of Te,ms
        subsequent to retirement for service for-
        felts all rights to any and all claims to
        any retirement bensflts under the Teacher
        Retirement Act.
        sec. (3), v. c. sEt. 2922-1, Sec. 5, Sub-
                            a8 amended; City of
        Dallas v. Trammell, 129 Tex. 150, 101 S.W.
        (26) 1009. Eo authority rests In the Teach-
        er Retirement System to thereaftermake any
        annuity or refund payments to such teacher.
                                     Yours very truly,
                                ATTORREY QERERAL OF TBXAS


C%O:~erc:mw
.&Cl.                                Chaster E. Olllson
                                     Assistant


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                                       ERYQERERAL
