                                 NEYGENERAL
                                TEXAS
                      AUSTIN.      TEXAS




                      0otober 18, 1949

Hon. B. B. Sapp, Dlr8otor
and Exeoutlre Seoretary
Teaoher Retirement
System of Texar
Awtln, Texas                      0p1lli0nIlo.v-937.
                                  38: The eliglbllltyOS a
                                      mima    teaoher ta m-
                                      oelve retirementbew-
                                      fits after having been
                                      granted diaabilltj
Dear Mrs. Seppt                       benefits.
          We refer to yolarletter whloh states in sub-
stance:
          John Doe, age iifty (50), with thirty-
     one (31) year8 oreditable mmviee, made ap-
     plioatlon for disability retirement although
     he wan eligible $or service retireslent,and
     the mai0ai  Board granted alsabilltybaneflta.
     He has not attained the age of 60.
          Can dlrrabilitFpayments be diaoontluued
     at hia request in order that his aooount me7
     ba re-established,thereby making hLm eligi-
     ble to make appllcatlonfor aepvlm retire-
     ment?
          Seation 5, subdivision 1 of Article 2922-1,
the Teaoher Retirement Aot, aouoerna servlos retlrament
beuefita and provides in part8
          "An7 member may retire upon written ap-
     plication to the State Board of Truatefaa . . .
     Any member with thirty (30) years of oredita-
     ble serrioe may ret+* at any time Pegardless
     of the age obtained e . . Any member who has
     eooepted service retirement shall be imligi-
     ble and disquallfledto remma end/or oontiuue
     employment In the przbllosohools of Texan, and
     ~&JO #hall be Ineligible,and dlaqaal~fledto
     be otherwise employed in the publio aahoola of
HOU. B. B. Saps, page 2   (V-937)
                                                           -.



     this State; . O . provldsd further, that any
     -tired member who acoepts employment as a
     tesoher, exoept In the present~worldoonfllot
     and SOP twelve (12)'monthsthereafter,aa
     above apeoliied,shall iorfeit a,l&fi@its as
     a rstlred teacher end any and all olalma to
     any retirementbsueflta under this Aot. . .'
          Under the sutmltted fasts John Doe having had
thirty-one (31) years of'oreditable servloe, oould hays
applied for pensatientservise rstirsmentrather than for
dlasbllltg retirement. Howevsr, to preserve his right
to return to the teaohlng profession la the futurs when
his health was regalned, i.e., be rsstorsd to aotlve ae*
vi08 (Seo.5, aubd.S(a), (b)), he ohose to apply for dis-
ability rstlrsment.
          Se&ion 5 of the Teachers Betlmmnt Aat oon-
oernlng disability retirementbenefita, provldes In part:
          ?Jpon the applloationof s msmber . . .
     any msmber who has had twenty (20) or more
     yaars of oreditable service may be rstlred            -.
     by the State Board of Trustees . e . on a
     dlsabillty ratirsment allowanseprovlded
     that the Medical Board, (80s. 6, subd.(12))
     alter a medloal examinationof swh member,
     shall oertlfy that suoh member is mentally
     or physiaallg lnoapaoltatedfor the fur-
     ther prformaaoe of duty, that rush inoape-
     oity 1s likely to be permanent, and that
     swh member shall be retired." (Subd.3).
          *Upon rstlrsment for dlsablllty a mem-
     ber ahall raselvs a O e a disability IW?-
     tlrement allowance . . ." (Subd.4).
          "Should the Iledloal'Boardreport  and
     oertlfy to the State Board of Trustees that
     suoh dlsabllltybenefloiary is no longer
     physically or mentally lnsapaoltatedfor the
     performanaeof duty, . . o and should the
     State Bomrd of Trustees by a majority vote
     oonow In suoh report, than ths amount of
     his sllovsnoe shall be diaoontinued.. *"
     (Subd.5 (a)).
          "should a di88bllitYbeabflai8rJrunder
     the age of sixty (60) years be restor to
        r
    ,




            Eon. B. 8. Sapp, page 3   (V-937)


                 aetlve aervlae, his retirement allowance
                 shall oease, he shall egaln bsooms m member
                 of the RetirementSystem, and any reserves
                 ou his memberskip annaity at that time in
                 the membership Annuity Reserve Fund shell
                 be treusferredto the Teaoher Savlag Fuud
                 and to the State Xembership AoCUmul8tion
                 Fund, respectively,in propopttioa to the
                 original sum transferred to the Membership
                 Annuity Reserve Fund at Retirement. Upon
                 restorationto membership, any prior-servlqe
                 certlfIosteon the basis of whioh his ser-
                 vice was oomputsd at the time of his re-
                 tirement shall be restored to full foroe
                 and effect, aud in sdaition, upon his sub-
                 sequeut retirementhe shall be credited
                 with all his membership servloe. Blo mem-
                 ber eligible to retire for servioe et aix-
                 ty (60) years of age shall be allowed to
                 retire on a disability ellowance . . ."
                 (Subcf.5(b)).

r
                        Under the quoted provisions of Seotion 5, owe
            8 member mekes mpplloatioafor disablli.ty   retlrsment
            benefits, and haa been oertlfied by the Redioal Board
            and mpproved by the State Board of Trustees, he becomes
            a disabilitybeneficlery under the Aot as dlstingulshed
            fr o ml ~member of the Retirement System. Be rsmeins in
            that status until he attains the age of sixty when he
            automatioellgbsaomss retired for servloe (A.G.OpInlon
            X0.0-3834) or until he is rsstored to satlve servloe
            and membership status upon oertifioationof the Medical
            Board to the Board of Trustees that he is no longer in-
            oapaoltatedfor performance of duty and the Trustees
            vote to ct5ncurin the Medical Boardda report. Under the
            facts submitted,John Doe has not attained the age of
            sixty, nor has he been rsatored to active service by
            Msdloal Board and Board of Trustee a&ion which is nea-
            easmry for restorrtion of his membership status in the
            Retirement Syatene. The Aot whiah changes the stetus of
            an motive or aontributlugmsmber to that of a retired
            member Is the order or resolution of the Boerd of Trus-
            tees. Likewise, the Aot which ohenges the status of a
            dismbility beneficiaryto that of an motive member is
            the order OP resolution of the Board of Trustees.
                      Under the faots submitted,the teaoher member
            mode applioationfor dlseblI.lty retirementbenefits mud
,I-         not for ssrvioe retirement benefits. Under the low, he
            could hove applied for either. Had the member chosen to
                                                           .


Eon. B. B. Sapp, page 4   (V-937)


apply for serriae retlrsmsntbensflts, he would then
have had the right to shoose the mmnner in which his
ser,Hoe r&frame& mllowauoe should be paid. This
ahoioe lnoludsd a selestion of tbs mssimum allowsnoe
to be paid during appliomnt~sown life, or one of three
options uader any one of which he would raeelse a rs-
duoed allowenoeduring his lifetime with pmyment of a
certain amount theraafterto a beaeficiaryto be seleat-
ed by the mpplioant.Sea.5, aubd.7, of Art.2%?2-1,V.C.S.


         If 8 ternsher,age fifty, with thirty-
    one yews orsditmble servloe In the Teaoher
    Retlrsment System; mpplied for, waa grmnted
    disability retirementbenefits, mnd hoe not
    beea restored to aative sarviee and member-
    ahlp in the.System, he mmy not bs granted
    service retirement. Art.2922-1,Sea .5, subds.
    1,3,4,6(e),5(b), 7; sea.6, sub4.(12),V.C.S.,
    as smendea;A.Q.Oplnlonno.O-3834.
                                    Yours very truly,
                              A!tTORBgP@EBgRALOFTgXAS


CEormw
                                     Cheater R. Olllson
                                              Assistant




                              FIRST ASSISTART
                              ATTO~GRRRRAL




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