.




                                                       LAW LJBRARY
    Mr. Frank H. Jaokson                    Opinion No.M-647
    Executive Secretary
    Teacher Retirement System               Re: Several questions relative
      of Texas                                  to rights and status of
    Lowich Building                             "faculty member" and former
    Austin, TCXPG 78701                         "faculty mcmbez" under
                                                the optional Retirement
                                                Program (Art. 2922-U.
                                                V.C.S.) and the Teacher
                                                'RetirementLaw.
    Dear   Mr. Jackson:
              In your letter'requestingan opinion on the above
    captioned questions, you set out the followingquoted information
    and questions.
                "During the Regular Session of the 60th Texas
           Legislature, 1967, S.B. 292, providing an
           opticxm1 r(e+itementProgram   sor Cullcye a1d unlvervity
           faculty members, was enacted. Section.2(d) of S.B.
           292 defines the term 'facultymember.' As a result
           of this legislation,many faculty members   in the
           institutionsof higher education in Texas elected
           to participate in the Optional RetirementProgram
           in lieu of -Teacher Beklramont. Recently several
           persons who had previously elected the Optional
           Retirement.Proqramhave changed to employment in a
           new position still in an institution  of higher
           ~ducirtlsn.-buC.whi.zh    tongor b= oenoid~rod
                               am L-LO'                     ai)
           a 'facultymember. I As a result of these changes of
           positions, we present the followingquestions for
           your consideration:

                  "1. Is a 'personwho was employed in a state-
           supported institutionof higher.education as a
           faculty.memberin Texas and elected to become a
           member   of the Optional RetirementProgram under
           thq.provisionsof Chapter 729 (S.B. 2921, 60th
           Texas Legislature,Regular Session, 1967 (2922-li,V.C.S.),
 Mr. Frank M. Jackson, page Z(M-647)


      and who is later employed in.a state-supportedinstitution
      of higher-educationin a position classified as other than
      'facultymember,' again required to become a member of
      the Teacher RetirementSystem as provided under Section
      1.03 of the Teacher RetirementLaw?
          “2.  If your answer to question NO. 1 is in.the
     affirmative,would said person, after five years of re-
     employment in the new position, be eligible to reinstate
     any account previouslywithdrawn from the Teacher Retire-
     ment System under the provisionsof Section 2.05 of the
     Teacher Retirement Law?

          ”3 . If your answer to questionNo. .l is in the
     affirmative, is said person eligible to receive credit
     with the Teacher RetirementSystem for any service during
     which time he was a member of the Optional Retirement
     Program?

          “4.  If your'answer.toquestion No. 1 is in the
     negative; is .said.personstill eligible to participate
     in the Optional RetirementProgram even though he.is
     no longer-elfgible.to.be.considered as a 'faculty
     member' as defined in Chapter 729 (S.B. 2921, 60th
     Texas Legislature,Regular Session, 1967?"
           The Teacher RetirementSystem of Texaeis governed
by the following provision of the Education Code:
           Article 292271.02,Vemon's.Civil Statutes, reads, in
part as follows:
           I((a) In this Act, unless the context requires
      a different definition:
          "(1) 'RetirementSystem' means the Teacher
     Retirement system of Texas as defined in Section
     1.01 of this Act:
          “(2) 'public school' means any educational
     institution or organiaationin thio otatc which undct
     the laws of Texas.is entitled to be supported wholly
     or partly by state, county, school district, or
     other municipal corporationfunds:
          "(3) 'teacher' means any person employed to render
     teaching service on a full-time,regular salary basis




                           -3094-
Mr.   Frank M. Jackson, page 3 (M-64'1)

       .. . . by the-board of regents of any college or
       university,   or by any other lega.ly constrtuted board
       or agency of any public school;

           “(4) 'teachingservice'means service rendered
      in organizedpublic education in this state in
      professionalor business administration,or in
       supervision or instruction;

           "(5) 'auxiliaryemployee'means a person other than
      a 'teacher'employed..onafull-time,reqular salary
      basis by the boards or agencies listed in Subsection
      7a)   ,(3)     of this     section;
              II. . .

           "(8) ‘member’ means any teacher or auxiliary employee
      included in the membershipof,the Retirement System
      in accordancewith this Act;
             "(10) ‘servite’ means service as a teacher or
      auxiliary'employeein the public schools of this state,
      or in one of the other department,institutions,or
      agencies    of the public school system of Texas,
             ,I...'I(Emphasisadded.)
           Article 2922-1.03,Vernon's Civil Statutes, reads               as
       follows:
              "(4       All    persons-who on   the effective date of
      this act were members of the Teacher Retirement System
      of Texasshall continue  as.memberssubject.to the
      provisions of this Act except as provided in Chapter
      729 (SiB. 2921, 60th Texas Legislature,Regular
      Session, 1967.
              "(b) Every person who may be employed as a teacher
                y e
      or auxiliar      0 ee in an
      branch or unit of the public school system of this
      state shall become a member of the Retirement              System
      as a condition of his employment. This subsection shall
      not apply to require membershipof any person who
or. Frank M. Jackson, page 4 (M-647)

           "(l)'has heretofore,pursuant to authoriCy of
     former  laws,-executed and filed a waiver of member-
    ship in the"RetitementSystem; however, any such
    person may,'electto become a member at the
    beginning of any school year, but shall not be
    entitled   to 'credit for prior service unless payments
    for the waived service are made as provided in Section
    2.05 of this'Act; or

         "(2) was or may be for the first time-employed
    as a teacheror'auxiliary employee, and who at such time
    was or may be.more than 60 years of age; however, such
    person may'efect to.become a member of the Retirement
    System as-.of'theeffective date of employmentby
    notifying his employer and the State Board of Trustees
    within 90 days from the effective'dateof employment;
     Ol:

         "(3Pelects to.partictpatein the retirementprogram
    provided b &re
                 Cha ter                                     ,
    Regular Session, 1967,,Article 2922-li)" (Emphasisadded.)
            Article 2922-1.04,Vernon's Civil Statutes, reads,   in
    part    as 'follows:
              "(a) ....


          "(d) If the.membershipof any member shall
     terminate; except by death or retirement,all his
     creditable service theretofore allowed or earned
     shall be forfeited.
          "(a) Should a person whose membershiphas
    terminated again become a member, he shall enter
    %he Retirement System upon the same terms as a person
    entering service for tho first timc.on that date and
    shall not.be entitled to credit for.prlorservice or
    other terminated service, unless it is reinstated upon
    the terms and conditions set 6ut in Section 2.05 of this
    Act. " (Emphasisadded.)

            Article 2922-2.05,Vernon's Civil Statutes, reads as
     follows:

         '*(a)Any teacher or auxiliaryemployee who has
    executed a waiver of membership in the Retirement
    System shall have the privilege of electing to receive



                            -3096-
Ur. Frank M. Jackson, page 5 (M-647)

    full membership service credit, provided such
    toaohar or auxUiary employee after~becominga.member
    of the Retirement System shall deposit all back
    deposits,    assessmentsand dues  which he would have
    paid or deposited had.he been a member of the
    RstLreraent~~System during each ~of the years jae actually
    taught or was employed as an auxiliary emp1oyee.i.nthe
    public schools-followingthe date on which he first
    became eligible for membershipin the.Retirement
    System, together with interest from the.date each.
    amount was-payable at the rate of five percent per annum.
    One-half of the interest shall be credited to the state
    contributionaccount.
         "(by)Any person who terminatesor'has terminated
    membership in. the RetirementSystem by.withdrawalof
    deposits or by.absence from service shall..have
                                                  the.
    privilege.of.reinstating such terminatedmembership
    by renderlng.servicefor five subsequent consecutive
    creditable years and depositingthe.amountwithdrawn
    plus membership.feesfor the years during which member-
    ship was'terminatedplus a reinstatementfee of two and
    one-half,percentper annum from the date of withdrawal to
    date of redeposit. The reinstatementfee shall be
    cxedited to the-state contributionaccount.
         "(cl The amounts to be deposited shall be
    determined fn each case by the State Roard of Trustees
    and no merson.shallbe grant.oAretitiomont upon ouah
    service credits until the amount so determined is paid
    iis.full."
          Under the provisionsof Article 2922:1.03(b)
every person who is employed as a teacher or auxiliary employee,
as defined in ArtioLc 2922.1.02of any institutionof
higher education.isrequired to be metier  of the "Teache.r
Retirement System of Texas" unless they are exempt under  the
exemptions set out in.subsection(l), {2), or (3) of Article
2922-1.03 (b). Subsection  (3) of Article 2922-1.03(b)states
that membership in the,TeacherRetirementProgram is not required
of these vho elect to participatein the Optional Retirement
Program provided by Senate Bill 292, Chapter 729, 60th Texas
Legislature, 1967 and codified as Article 2922-li which
reads, in part, as follows:
          0....

          “Sec. 2.  As used in this act, unless the context
     otherwise requires:



                         -3097-
W.   Frank M. Jackson, Page 5 (M-547)


            II
             ...

          * (b) gRetirement System' means the Teaoher
     Retirement System of Texas as defined under the
     provisions of chipter 470, Acts, Regular Session,.+th
     Legislature U37), ai3amen&a.




           O(f) .*OotionalRetirement Program’  amum the
      optional retirement praqram created by this Act to
      provide fixed of varisble retirement annuities, including
      retirement unit annuity Certfficat$s of-tarticipation
      P a r la a r l+y
                     a r a ntb sr s.



            "(ak There is hereby estahlfshed an Optional Retirement .
      Program.   Partkipat$osi In the Optional ffe%iEUQ8BtProgram
      is in lieu-of active-metiershipin the Retirement System.
      The Governing-Boards for all institutions of higher education
      shall make available to all faculty members in their
      component institritions,agenoiea and units the Optional
      Retirement Program vhioh shall provide for the vesting.
      of benefit8 after one year,of;participation.
           "(b) All faculty members are'eligible to participate
      in the Opt'ZonaLPetirement Program, subject to such
      rules as may be presoribed by the Governing Board
      of.the institution of.hfqher education at which they
      are employed.
            *Sec. '4. .,..




                                -3098~.
Mr. Frank M. Jackson, page 7   (H-647)




             “Sec. 5.    A faculty member (includingone so
     employed on the effectivedate of this Act) who be-
     comes    eligible to participatein the Optional Re-
     tirement     Program an6 who is a member of the Retire-
     ment System is hereby extended the option of con-
     tinuing his membershipin the RetirementSystem
     or    participatingin the Optional Retirement Ptoaram
     l   .   .   Afaculty member exercisingthe option to
     Participate in the Optional RetirementProgram as
     aforesaid shall not thereafterbe eligible for
     membership in the RetirementSystem except as a
     limited member Bursuant to Se&ion I hereof
     unless such member ceases to be employed by an
     institutionof hzgher educationand becomes,employed
     by the Texas Public School System other.than in an
     institutionof higher education. A faculty member
     not exercisingthe option to participatein the
     Optional RetirementProgram as aforesaid shall be
     seemed to have chosen to continue membership in the
     RetirementSystem in lieu of exercisingsuch option
     to participate in the OptionaT-Ret-frement    Program.




     as amended (Article~2922-1,Vernon's Texas Civil
     Statutes), upon applicationin writing as prescribed
     by the State Board of Trustees and the applicable
     amounts shall be paid within twelve (121 months from
     date such applicationis.received. Upon such with-
     drawal of funds, the facultymcmbcr shall thereby'
     forfeit and relinquishall accrued rights as a
     member
     --     of the."
             _.-                        (Emphasisadded.1
          In construingany statute, the first rule to be observed
is that if the words of the statute are plain and definite, it must
be interpretedin accordancewith the maxim, "ThenLaw is Thus




                          -3099-
Mr. Frank M. Jackson, page 8 (m-647)

Written,  a mcuning ticaLQ 1LLrralinterpretation must be giveri
to the words of the statute,unless .todo so will lead away
from the.iatent and puzpose.of.theAct ns a uhole.and~produce
an .absua. result.
            Another rule of equal importanceis that a statute
must be interpretedso as.to make operativein a practical way the
purpose of the Legislature, aa so as to secure to the class or
classes of persons in whose behalf the statutewas enacted the
benefits intended to be conferred. Also when statutes are in
pui matoria and relating to the same subject, they are to be taken
together and so construed,   in referenceto each other so that if
practicable, effect may be given to all provisionsof the statutes
being construed. State v.'Dyer,145 Tex: 586, 200 s.w.2d 813,
(1947).
          The legislaturehas clearly shown by its enactment of    .
Art&es   2922-1.01,  1.02, 1.03,  1.04, 2.05 aa 2922-15 that
it intends for every person employedas a teacher or as a full
time auxiliary employee at an institutionof higher education
Co become a member. of the Rctircmcnt System ao a condition. of
employment.                      :
             The plain and unambiguouslanguageof Section 3 of Article
 2922-U declares    that participationin the Optional Retirement
Program is in lieu.of active membershipin the Retirement System
 ana is limited   to.Ufacultvmembers" only as defined.in'Section2(a)
of the same'statute:'Attorney General Opinion&I-315 (1968).
The 1egislature"has clearly,defined'.a    "facultymember” and clearly
restricted-theOptional Xatiremsnt-Program      to faculty members
by specific reference.   throughoutthe body.of.the   bill and as set
out in theabove quoted sections.of.thestatute.
             The legislaturehas thus created a special retirementpro-
gram.for   a specially designatedgroup of employees at institutions
of higher education who are designatedby name and definition as
 "faculty'members"and the-provisionsof said law can only apply to
members~of~thatspecial group. Therefore,the're.strictions        of
~Sect1on.S am 6 on rejornrng tne Teacner xetlretintsystem would appl;
only to those employees,   of institutionsof higher'educationwho
 are classified as a "facultymember". An employee of an institution
of higher education who has bean classifiedas a "faculty member"
but has changed to another employmentwhich would no longer met the
 definition of "faculty merberk as set out in Article 2922-li woula
 therefore   no.longer be eligible to participatein the optional
Retirement Program, and would be required to rejoin the Teacher
 Retirement System under the requirementof Atti~cle    2922-1.03
because.they are no longer under the exemptions set out in Article
 2922-1.03b. However said former faculty member would have to meet
 the requirementsof Section 40aof Article IIIof the Texas ConStituti'
 in order to receive benefits from the Teacher Retirement System.



                           . . . ..^
or. Trank H. Jackson, page 9 (M-647)

          In Attorney General Opinion M&l96 (1968)we held that
the provis$oqe .ofSection.7 of Article 2922-11 were unconstitutional
for the following.reasons:

         "Since'Artiole2922-11 does not provide
    or contemplatethat a recipientof the Teacher
    Retirement-Systemfuna who elects to.participatein
    the Optional RetirementProgramwill.release to
    the State..the.'moneys    contributedby the State to
    the Optional   RetirementProgram to his credit, it
    follows that-so-longa5 a faculty.memberis a recipient of
    the Teaoher.RetirementSystem Fund, he is not
    eligiblr~to'reooivoany benefit8 from the Optional
    Retirement-Program: He may easily cease to be a
    recipient ofthe Teacher Retirement System
    fund by withdrawing.    from the Teacher Retirement
    System and withdrawingfrom the fund all contributions
    he has made'thereto. See Section 48a of Article III
    of the Texas.Constitution:     Section 6 of Article 2922-11.
    Of course i upon-the withdrawal of such cont.ributions
    from the fund,   the’faculty   member will thereby forfeit
     and relinquish all accrued tightn an a member of
     the Teacher RetirementSystem.
          "Since Section 7 of Article 2922-li attempts
     to permit the recipientsof the Teach&r Retirement
     Fund to be-eligible for another State pension without
     'such other state pension retirement fund, contributed
     & the State to.tho credit of the recipient,being:
     release&to the.State of Texas,' said section 7
     violates the-abovequoted provisions.  of,Sectiod'48a.ofArticle I
     of the.Texas.Constitution and is, therefore, un-
     constitutional'andvoid because necessarily antagonistic
     to the clear~constitutional provision. 1.2Tex.Jur.2d
     374, ConstitutionalLaw, Sec. 30.".(Emphasisadded.)

           For the same reasok as set out BbOVe, we hold that
the former faculty member would be.required.tocash in his optional
RetirementProgram and withdraw his benefits under the Optional
Retirement Program; otherwisehe would not be eligible for
benefits under the Teacher RetirementProgram, unless he released
his benefits of the Optional RetirementProgram to the State of
Texas .as a condition for,recelvingbenefits'from the Teacher
Retirement'Systemas required by Section 4aa of Article III of the
Texas Constitution.




                            -3101-
Mr. Frank M. Jackson, page 16 (M-647)

         The provision of Article 2922-1.04(e),and Article..
2922-2.05would control his rejoiningthe Teacher Retirement
System.  Your first two questions are ankwered in the affirmative,
subject to meeting the requirements of Section 48a. Article
III of the Texas Constitution.
                  Your third question is answered in the negative for the
LSSPIUU    4~     set     out   In   Attorney     rieneral’s   VplnlOn    M-AYb   that    +hC
Legislature has provided for two separate and alternate retirement
programs and,by the provisionsof Sections 5 and 6 of Article
2922-li.and the restriction   of Section 48e of Article III of the
Texas Constitution that there can be no credit allowed in the
Teacher Retirement   System for that period of,participationin the
Optional Retirement Program Furthermore,we find nothing in the
statutes Involved which would allow a person employed in a state-
supported institutionof higher education as a faculty member to
receive credit with the Teacher RetirementSystem for service
while a mcmbcr of .the Optional Retirement Program.
                  The conclusionswe have reached above in answering your
first     three     questions make it unnecessary to answer your fourth
question.
                                            SUMMARY
                       Article 2922-1.03,V.C.S.,  requires ail
                  persons employed as teachers or auxiliary
                  eau'loyeaoof an institutionof higher education
                  to be members of Teacher RetirementSystem of
                  Texas unless they are members'ofOptional he-
                  tirement Program.
                       Article 2922-11,V.C.S., provides an
                  Optional RetirementProgram for "facultymembers”
                  only as defined in said statute.’
                       Former "facultymembers" who no longer
                  meet definition of "facultymember” are required
                  ta rejoin Teacher Retirement syetcm                    PS provided     for
                  under   Article 292,2-1.03,2922-1.04 and 2922-2.05
                  V.C.S. but said former faculty members ate not
                  eligible to receive credit with the Teacher
                  Fbatirement~System  of Texas for any service during
                  which time they were members of the .Cptional
                  Retirement   Program.
                                             4




                                                                  General of Texas

                                                -3102-
Mr.   Frank       M. Jackson, page 11 (M-647)

Prepated by William J. Craig
Aesistant Attorney General
APPROVED:
OPINIOrj      CoMMITT.EE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
W. 0. Shults
Houghton Brownlee
Arthur Sandlin
Tom Sedberry
MEAD& F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant




                                -3103-
