                         June 18, 1969


Honorable Graves Landrum                          Opinion No. M-420
Vice-Chancellor  for Administration
The University  of Texas System                   Re:   Whether rights of an em-
Austin, Texas                                           ployee, participating     in
                                                        the Optional Retirement
                                                        Act, vest after one year's
                                                        participation   in the
                                                        Optional. Retirement'Pro-
Dear Mr. Landrum:                                       gram, and related questions.
             You have requested    that    this    office   answer the following
questions:
            "1. Do rlghts~ of the employee particl-
      patlng in the Optional Retirement Act vest
      after one year's participation  in the Optional
      EEtFement Program?
            "2.  If answer ,to question 1 is yes, then
      do the rights of the employee vest on his first
      day of employment after one year's participation
      in the O.R.P.?
             "3.   Is it mandatory that the participation
      requirements in the 0.R.P'. be completed at one
      institution,    or may the participation     require-
      ments be completed 'In more than one state-supported
      institution    of higher education,    including   junior
      colleges,    to insure vesting after dne year of
      participation?
            “4.  Does the employee have a vested in-
      terest after one year's participation    even
      though the participation    might be with more
      than one instiance    company?
          Article  2922-11, Vernon's Civil Statutes, provides for
the Optional Retirement Program for. teachers and administrative
                                  -2099-
                                      ..
Ron. Craves Landrum, page 2 (~-420,



personnel   employed by state-supported   institutions             of higher
education   and reads, In part, as follows:

            “Section 1. The Legislature            finds that
     higher education Is vitally           important to the
     welfare,    If not the survival,        of Texas and
     the United States at this stage. In history
     and that the quality         of higher education Is
     dependent upon the quality           of college    and
     unlverelty    faculties.        The Legislature     finds,
     therefore,    that moneys spent on recognized
     means for producing an excellent            system of
     public higher education          Is money spent to
     serve a public purpose of great importance.
     The Legislature      finds further that a sound
     faculty retirement        program that provides
     full and complete retirement           benefits    to
     teachers and administrators           who have given
     faithful    service to state -supported lnstltu-
     tlons of higher education Is a well-recognized
     means for Improving a state’s           program of pub-
     lic higher education.           The Legislature’s      pur-
     pose in establlshlng         the retirement      program
      provided for by this Act Is to improve further
      the higher education available           to the youth at
      the state-suonorted       ‘colleges   and universities
      and to estabiish      this retirement       program as
      part of the plan of compensation for the faculty
      of these colleges       and universities.

            “Sec. 2. As used in this         Act,   unless   the
      context otherwise requires:
            ,I
              . . .
            “(c)  ‘Institution    of higher education’
      means an lnstltutlon     of higher education as
      defined under the provisions      of Chapter 12, Acts,
      Regular Session,    59th Legislature   (1965),   and
      lncludlng James Connally Technical      Institute,
      except the Rodent and Predatory Animal Control
      Service.
             “(d)  ‘Faculty member’ means a person em-
       ployed by an institution  of higher education
       on a full time basls as a member of the faculty
       or staff and whose duties Include teaching,

                                  -.2100 -
Hon. Graves Landrum, page 3 (~.420~



     research,    administration,    Including profes-
     sional librarians,      or the performance of pro-
     fessional    services   but does not mean a person
     employed in a position       which Is In the lnstltu-
     tlon’s   classified   personnel system or a person
     employed In a similar type of position        if the
     Institution     does not have a classified    personnel
     system.

           “(e)  ‘Governing Board ’ means the body
     charged with policy direction   of any institution
     of higher education.

            “(f)     ‘Optional Retirement Program’ means
     the optional retirement         program created by this
     Act to provide fixed or variable retirement an-
     nuities,     Including retirement      unit annuity
     certificates      of participation     for faculty
     members.
           “Sec. 3(a)  There Is hereby established
     an Optional Retirement Program.   Participation
     in the Optional Retirement Program Is In lieu
     of active membership in the Retirement System,
     The Qoverning Boards for all Institutions    of
     higher education shall make available   to all
     faculty members In their component Institution’s,
     agencies and units the Optional Retirement Pro-



            “(b)  All faculty members are eligible    to
      participate  in the Optional Retirement Program,
      subject to such rules as may be prescribed by
      the Qoverning Board of the institution    of higher
      education at which they are employed.

             “Sec. 4. In administering        the Optional Re-
      tirement Program a Qovernlng Board may provide
      for the purchase of annuity contracts          from any
      insurance or annuity company o.uallfled and admitted
      to do business in this state.          Any life Insurance or
      annuity company qualified       and admitted to do
      business In this state shall be exempt from the
      payment of al: franchise       or premium taxes as to
      all annuity or group Insurance contracts made
      pursuant    to a benefit   program authorized      by the
      governing     board of an Institution      of higher ed-
      ucation,    or by any private      non-profit   educational
                                - 2101-
Hon. Graves Landrum, page 4 (M-420)



          Institution     of higher learning, which benefit
          program is paid for in whole or in part from
          the funds of such institution.      Where a Governing
          Board has more than one component Institution,
          agency or unit under Its jurisdiction,     it may
          provide a separate Optional Retirement Program
          for each component Institution,     agency or unit
          or place two or mbre component institutions,
          agencies or units under a single program.
                 n
                   * . . ” (Emphasis added. )
             The answers to your first  two questions are found In
the provisions    set out In Section 3(a) of Article 2922-11, as
above quoted.     The glaln and unambiguous language of this sec-
tion sets out that the Optional Retirement Program shall       ro-
vlde for vesting of benefits     after one year of parti&
We therefore    hold that your first question Is answered 1 th e
affirmative.     Accord, Attorney Genera’l’s Opinion No. ~-1G6
(1968).

               Article 23, Vernon’s Civil Statutes, defines year to
mean a calendar year.          It 1s well established        both at common
law and by statute,         that, unless otherwise expressed the word
“year” when used is a contract,           judicial     proceeding or statute,
or constitution,       ordinarily     1s understood to mean a calendar
year, regardless       of whether It be leap year or otherwlse.’
Douglas v. Acacia Mu                               118 S.W.2d 643 (Tex.
Civ.App.      1938, error                        r v. National Life and
Accident      Ins. Co., 63                      ex.Clv.App.    1933 , error
ref.)     th e Court set                         means “at the end of”
      “as soon as” and In computation of time the word “after”
&erally        understod     In the sense of excluding the day or date
mentioned,        Words  In  a  statute must be given their        enerally
accepted meaning. Calvert v. Audio Center Inc., 34% S.W.2d
 420 (Tex.Clv.App.       1961 , error ref.    n.r.e.).      Applying the above
 stated definitions       to the words “vesting        after one year of par-
 tlclpatlon”,      we hold that the rights        of an employee vest on ~hls
 first    day of employment, after one year’s participation              in the
 Optional Retlrement Program, and your second question is answered
 In the affirmative.
             To arrive at the Intention  of the Legislature   In regard
 to your third question we must look at the full Act.       Having the
 power to set up the Optional Retirement    Frcgram, the Legislature
 had the power to spell out Its requirezer,ts.     This it has done
 by delegating   the duty to the governing board of each institution

                                   --2102 -
Hon. Graves LandNm, page 5          (M- 420)



of higher education to make an Optlonal Retirement Program
available    for the faculty    of its institution.      Section 3
specifically     gives the governing board of each lnstltutlon
of higher education the authority         to make the rules governing
the program for that lnstltutlon,         and to provide in those
rules that there be a vesting of benefits           after one year of
participation.       Section 4 provides that the governing board
may provide for the purchase of annuity contracts            from any
Insurance or annuity company qualified           and admitted to do
business in Texas.        The act clearly    sets out, In all of Its
provisions     and requirements,   the duty and responsibility      for
the Optional Retirement Program to be with the governing board
of each institution       of higher education.

          We therefore   hold that It is mandatory that the faculty
member must have participated    in the Optional Retirement Program
at one Institution  of higher education for at least    one calendar
year to be eligible   for vesting of benefit   rights under the Op-
tional Retirement Program.

           Where the governing board of a system composed of more
than one component institution,   such as the University     of Texas
system, has adopted a program placing all Institutions       within
the system under one program, It Is our opinion that an employee
may meet the one year vestlng.requlrement    by participating     in
such program In any one or more Institutions    within the system
within the same calendar year.
             For purposes of anawerlng your fourth question we
 have searched the statute for provisions         providing for the
  vesting of benefit rights by participating        ln more than one
  Insurance program.    Section 4 provides that the governing board
 may have a program with more than one Insurance company for its
  faculty  members. Therefore,       It 1s our opinion that an employee
 may have a vested Interest       after one year's participation    In
  the program of that lnstltutlon       even though It may be with more
.,than one Insurance company that was approved by the governing
  board of that Institution.

                           SUUMARY
               Article 2922-11, V.C.S.,    requires that
       Optional Retirement Programs provide for
       vesting of benefit rights after one year of
       participation     in the program by an emplcyee.
       Said vesting    Is to be effective      on his first
       day of employment after      one year’s    participation
                                   - 2103-
Hon. Graves Landrum, page 6       (~-420~




     In the program prescribed     by the governing board
     of the inetitution.      It Is mandatory that the
     partlclpatlon    requirements be completed at one
     Institution.     Where the governing board of a
     system composed of more than one component
     Institution,    such as the University   of Texas
     system, has adopted a program placing all ln-
     stltutlons    within the system under one program,
     It Is our opinion that an employee may meet
     the one year vesting requirement by participating
     In such program In any one or more lnst%tutlons
     within the system within the same calendar year.
     The participation     may be with more than one ap-
     proved Insurance company.




                                            General   of Texas

Prepared    by William J. Craig
Assistant    Attorney General

APPROVED:
OPINION'COMMITTEE
Kerns Taylor,  Chairman
George Kelton, Vice-Chairman
Joseph Sharpleg
Sam McDaniel
Houghton Brownlee
Jlm Swearingen

 W. V. Geppert
 Staff Legal Assistant
 Hawthorne Phillips
 Executive Assistant




                                  - 2104-
