       OFFICE   OF THE ATTORNEY    GENERAL   OF TEXAS

                          AUSTIN




Eonorable John 9. RUdt¶, Jr.
Aotuary and Assistant Direotor
Teacher Retlrament ot Texas
Austin, Texas

Dear ;;ir:




                                         State BOU-d




                     oeed the oompeneation last re-
                     tier as a teaoher."

                       3 and a(a) of section 3 or the Teaoher
                    ale 29.%?-1, Vernon*8 Annotated Civil stat-


         "3. Disability R0tirOx#nt   BetWrits
         *Upon the aDplioation of a muuber or his
    legal representatlvo acting in hle behalf,
    any aember who has had twenty (80) or more
    years of oreditable servioa may be retired
    by the &ate Board of Truetees, not less
    than thirty (30) and not more than ninety
    (90) days next following the date of filing
    such a;:p$loatlon, on a dfeabfl.ity retiremant
                                                      ;i y-.
                                                         ,*




EonGrab   z&B   S. mdd,   Jr., Fags 2



     allo~snoe, provided that the Efedloal Board,
     after a cedloal esaa5nat5oa of suoh mazaber,
     shall 08rtify that suoh mmber  5s mmtelly
     or physioally inoapaoltated for the further
     performam   oi duty, that euoh inoapaolty
     5s likely to be permanaat, and that suoh
     member should be retlrGd.*


          “5.   B8n8f5o5ariea Retired on Aooouat
                of ~fsabilftp.

          *on06 8aaoh year during the first five
     (5) years follGw5ug retirensmt of a member
     on a disability retirement allona~o4, and
     once in every three-year p4rfod th4rGaftar,
     the 3tate Board oi Trustees may, and upon
     his applloation ahell, require any dla-
     ability benetioiary who has not yet at-
     tained the age of sixty (60) years to un-
     dergo a nedloal examiBatlon, auoh exam.lUa-
     tion to be nade at the pleoe 0r residsno4
     of said beneiioiary or any other pla88 mutu-
     ally agreed upon, by a phyalalan or phyei-
     oians designated by the State Board of Trus-
     tees. Should eny disebflity benetioiary
    who haa not yet attained the age of sixty
     (60) year0 refuse to submit to at leant one
     lnbdloel examination 5~ my auoh periods by
     a l-hyslola~ or physioians designated by the
     State Board of Truetees, his allwaBoe    ahall
     be dlsoontinued uutll his withdrawal of suab
    refusal, end should his rGfU8ti GontiBU4
     for one year, all his rights In and to his
     allowsnoe shall be revoked by ths Stat0
     Board of Trustees.
           "(a) should the Eedloal Board report
     ad oertify to the oZlat8Board of Trust**8
     that SUG~ disability bsnaiioiary 5s so
     longer physloally czrmentally inoapaoltated
     for the perf'ors.vmsGof dutyt or that sUGh
     disability benGl5oiaW    5s engag4d In or 54
     able to engag in a gainiul o44UPatioa, ad
     should the %ate Board of Truat444 by .a
R~orab~*     John S. Bud&, Jr.,   paga 3



       majority rote conour in su4h report, thsn th4
       amount of hi6 4lb~4tno4 shall be dieoonbln~a~
       or reduced to am amount by wh5oh the m-t      &
       tha mIt Year'8 8&?iry Of th4 bOBGflOi~,     m
       a teaoher, (aco-da his preseut earnlq oapaoity.
       flbuld hla @mine    oapaofty be later ohanti,
       the wount of his allowanoe aax be further modi-
       tied; Provided, that the revised allomnoe ahall
       not exoesd the asumnt of the allwuwo    ori@m~.I-
       17 granted, nor &all It lroaed an amount whiah,
       W&B added to the amount earnable br the b-&i-
       oiary, equaln the aaount of hIa compensation
       rar the laast year prior to retirmmnt.~

              SUbseotion 3 providas the 6OBdit5OBS qvon *hioh .
n-bar      l~sy be retired on a dlsablllty retimt     alloraa~~
namely,    Wat the MaQiaal Boar6 after a psedlaal axuiaetlon
OS mohmembor,    shall oertif'y that az4hmemb4zls~atally
or physleally lnoapnoltate4 ror the further p4rfamame      oi
$&a    that suoh lnuapaoity 5s  likely to  be permamat,  aud
     suoh Baember should be retlmLr      (~5phaa5e supplied.)
*m&y* aa uaad in the otatute obr5otmly mean& that duty by
virtue or uhloh the pareon is a memberof th4 Rrtfr4amt
sYrr*.    Thersrore, ii ths Ltsdimal Board reaah*r the uonolu-
slon that the member ia inonpaoltated ror ntrtber towh5ng
and oertiiies thy &mm8 in aWOrd6IBW    with thu statutG,~wo
ara or the opialon that the state ~0at-d of Trustw~8 say re-
tire the m4mbsr beoauae of auoh Qleab515tp.

           Subaeation s(a) daal.ewfth a pereon who was re-
tired on eooount of d5aablllty but rho 18 POW ‘WJ l~~gcr~ m
lnoapaaltatedor engaged or able to engags fn a ga5r$l%l de-
oupation. TheToard    ot Tmateee ia authorized to r8dU44 the
aJJ.owenoa of suoh a person BOW engaged in a gainful OoOupa-
tion to an amount by whluh tha last yearb salary of tti bQne-
fiaiery, ae a teaoher;exoeeds   his present aWAing aagaO5ty.
IB other words, the allowanoe shall not be greateJ! than tba
amaunt when a&led to hi8 present sarn5ag capaaftjr evala hfa
laet year.0 aelary as a t44Oh8ro

          ~8   this pr0~56fon prevat   the Board or 'pmzsteerr
from ret5r5ng a member physicrally or mentall.y 5mapaQitated
from teaching bear&we ha Is engaged 5n ama Sam        OQauPa-
tion? we thfnk not. SO&ion 3 doe% not State that the
Honorable John 9. Rudd, ar.,   page   4



member met not be so %n&%ged, and we are not authorized,
nor do we feel that we should read it into the statute.
There would be BO reason to dlst5ngulsh betweeu a member en-
gaged in a gain?ul oocupatlon et the time of retirement, and
on6 who is not but who later beoofies so engaged, and penal;%4
the former. 'iledo believe, however, that Seation S(a) sets
the maxisiwn allowan  of suoh person.

              In view   O? the foregoing, it 5s the opinion of
this  department      that the State Board of Trustees of thr
T840hOr    Rfhlrement System ie authorized to retire a amtb%T,
who i8 physloally or mentally inOapa6itated from the further
p8r?ormanoo o? his duty as a teaoher, on a 658ablllty re-
tirwazctallowa~ae under !3ub%8otlon 3, Se@tlon 5 or tbr
Teaoher Retirwwnt kot ev4n though %uoh mmber is enga@l in
a grlnrul oooupation ot the time of retlremsnt~ however, the
allowanor o? eueh tiearborshall not be more than that amount
rhioh when aadsd to the anount earnable in auoh gainful ooou-
patlon 4xo4od8 his last yvmz*8 ooolponsatlon as a boaohm.




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