                      The Attorney              General of Texas
                                           August 7, 1978
JOHN L. HILL
Attorney General


                   Honorable Leonard Prewitt                     Opinion No. H-12 2 4
                   Executive Secretary
                   Teacher Retirement System of Texas            Re: Whether a teacher member
                   1001 Trinity                                  of the Board of Trustees of the
                   Austin, Texas 79701                           Teacher Retirement System may
                                                                 continue to serve after retire-
                                                                 ment.

                   Dear Mr. Prewitt:

                         You have submitted   to us for an opinion the following two questions:

                              (1)    Does retirement  under the Teacher Retirement
                                     System vacate the office of Trustee of the
                                     Retirement System if the Trustee was a member
                                     of TRS appointed pursuant to Section 3.59(d)(l),
                                     Texas Education Code?

                              (2) If your answer to the previous question is “yes”,
                                  does the retired member continue to perform the
                                  duties of Trustee until a successor qualifies?

                         The Education Code provides in part:

                               S 3.59. General Administration

                                 (a) General administration of and responsibility for
                               proper operation of the retirement system in accor-
                               dance with the provisions of this chapter are vested in
                               a State Board of Trustees, which shall consist of nine
                               persons appointed as specified in Subsections (b), (c)
                               and (d) of this section.

                                    ....

                                 (d) Four members shall be appointed by the
                               governor, with the advice and consent of the senate,
                               subject to the following requirements:




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                                                                                  111   .--a




Honorable Leonard Prewitt         -   Page 2 (H-1224)



                 (1) Three such members shaIl each be appointed from
              a slate of three members of the retirement       system
              nominated by written ballot by the membership of the
              retirement system at an election conducted under the
              rules and regulations adopted by the State Board of
              Trustees. . . .

A qualification  for an appointment under section (d)(l) Is that the appointee be a
member of the retirement system. The legislative intent was that the members of
the system nominated three fellow members to represent them on the Board of
Trustees. When one ceases to be a member, he ceases to represent the membership
and his office is vacated. Phagan v. State, 510 S.W.2d 655 (Tex. Civ. App. - Fort
Worth 1974, writ ref’d n.r.e.1; Attorney General Opinions H-677 (1976) (member of
dental board vacated office when he moved out of state); H-576 (19751 (member of
state board vacates position when he no longer possesses occupational qualifi-
cation).

       In Attorney General Opinion V-1269 (1950, this office concluded that a
member of the Board of Trustees of the Teacher Retirement            System is not
qualified for membership on the board when he retires. See Educ. Code S 3.04(a)(3)
which provides that membership in the retirement syst=      is terminated when an
individual accepts retirement. The change in the statutory language does not alter
the result in V-1269. However, the question of continued service until a successor
qualifies was not addressed in V-1269.      Article 16, section 17 of the Texas
Constitution provides:

            All officers within this State shall continue to perform the
            duties of their offices until their successors shall be duly
            qualified.

Article 16, V.T.C.S., provides:

              Each officer, whether elected or appointed under the laws
            of this State, and each Commissioner, or member of any
            board or commission created by the laws of this State, shall
            hold his office for the term provided by law and until his
            successor is elected or appointed and qualifies. . . .

We believe this language requires the trustee for the Teacher Retirement System
to act in a holdover capacity despite his retirement.  See Tex. Const. art. 21; Jones
v. Citv of Jefferson. 1 S.W. 903 (Tex. 16661: Keen V. Faherston.  69 S.W. 963 1(Tex.
Civ. App. - 1902, writ ref’d); Plains Common ~Consol. School Dist. No. 1 of Yoakum
County v. Hayhurst, 122 S.W.2d 322 (Tex. Civ. App. - Amarillo 1933, no writ.); 47
Tex. Jur.%d Public 3fficers  SS 41-43.




                                        p.   4897
Honorable Leonard Prewitt    -   Page 3        (H-1224)



                                  SUMMARY

           Upon retirement,     a teacher    member of the Board of
           Trustees of the Teacher Retirement        System vacates his
           office but continues to serve as trustee until a successor has
           qualified.




                                               Attorney General of Texas

APPROVED:




C. ROBERT HEATH, Chairman
Opinion Committee




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