            HEATTORNEYGENERAL
                            TEXAS




Mr. Frank M. Jackson                Opinion No. C-201
Executive Secretary
Teacher Retirement System           Re:   Construction of the
  of Texas                                Teacher Retirement
201 East 14th                             System of Texas under
Austin, Texas                             stated facts.
Dear Mr. Jackson:
       The following is your statement of facts and the ques-
tion your department has proposed:
            “Miss Charlotte P. Cornell was a teacher
       In the Galveston Public Schools.
            "She was a member of the Teacher Retlre-
      ment System of Texas with 21 years of 'Prior
      Service' (prior to September 1, 1937) and
      26 years of 'Membership Service' (after Sep-
      tember 1. 1937) making a total of 47 years
      of service.
           "On March 20, 1963, Miss Cornell applied
      f;z3retirement to become effective April 30,
             She was 67 years of age. On May 15,
      1963; Miss Cornell died.
            "At the time of application for retlre-
      ment Miss Cornell elected to receive, In lieu
      of standard service annuity, benefits under
      Option 4 (a reduced allowance payable for a
      guaranteed period of ten years and as long
      thereafter as the retired member shall live).
      This option would have paid Miss Cornell or
      her beneficiary $269.93 per month for a mini-
      mum of 10 years if it had become effective
      before her death.
            "Miss Cornell nominated her niece, Mrs.
       Sara Ellen Stubbs, to receive any benefits
       due under the Teacher Retirement Law at her




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Mr. Frank M. Jackson, page 2 (C-201)


      death. Her first retirement check would have
      been due May 31, 1963, if she had lived to that
      date. If Miss Cornell were considered to have
      died after retirement her nominee, Mrs. Stubbs,
      would have received $269.93 per month for 120
      months. AS the nominee of a member who died
      in service, she would receive the,balance in
      Miss Cornell's account which amounts to $6,211.55.
           "The Board of Trustees of the Teacher Re-
      tirement System has ruled as follows: 'A member
      who has aoolied for service or disabilits retfre-
      ment and dies before the due date of the-first
      annuity payment will be considered to be "active"
      rather than "retired" for the computation of
      death and survivor benefits.'
           "The above regulation has been the depart-
      mental construction since 1937 and was re-adopted
      b th B     d f Trustees on November 10, 1961
      $e osigg%    ietirement Law (S.B. 47, 45th Teias
      Legislature) is very specific on this point. Sec-
      tion 7 reads in part as follows:
           "'Optional allowances. With the provision
      that no optional selection shall be effective
      in case a beneficlary~dles within thirty (30)
      days after retirement, and that such a benefici-
      ary shall be considered as a; active member at
      the time of death; _--m--e-
            "It has been the opinion of the Board of
       Trustees that S.B. 290, 54th Texas Legislature,
       (Article 2922-1, V.C.S.) repeals onl;ez;;oar;s
       of the law which were in conflict.
       reads In part as follows:
                   ” I
              -----all provisions of the law inconsis-
       tent with the provisions of this act are hereby
       repealed,:0 the extent of such inconsistency.
       ,.....,.’


            "The Teacher Retirement System has offer-
       ed to pay Mrs. Sara Ellen Stubbs, as benefici-
       ary of Charlotte Cornell, the amount ;; th$,zF-
       cumulated deposits of Miss Cornell.
       dore B. Stubbs, attorney for his wife, &s.
       Sara Ellen Stubbs, and for the estate of Char-
       lotte Cornell, deceased, has written you


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Mr. Frank M. Jackson, page   3 (C-201)


        expressing the opinion that his wife Is en-
        titled to receive 120 monthly payments In the
        amount of $269.95 each rather than merely the
        $6,211.55 accumulated deposits.
              "We have a copy of the brief filed by Mr.
        Stubbs and agree with his statement of facts
        in this matter but we do not a ree with his
        conclusions of law. Section 18 of Article
        2922-l is printed at lines 1151 through 1159
        of the booklet to which Mr. Stubbs refers.
        It includes the statement that 'all provisions
        of the law inconsistent  with the provisions
        of this Act are hereby repealed to the extent
        of such inconsistency.' Since this Statute
        became effective in 1.956, the Board of Trustees
        of the Teacher Retirement System has relied
        on this passage to authorize payment under the
        previous statute to beneficiaries of members
        who died after the nominal date of retirement
        but before the due date of the first annuity
        payment. It has been the position of the
        Board of Trustees that the 1956 Statute is
        silent on this point. It should be pointed
        out that this treatment has resulted in paying
        substantially more death benefits than would
        otherwise have been payable, since many of the
        members who died under this circumstance had
        chosen the standard annuity providing no further
        payments to the beneficiary and since most bene-
        ficiaries were of such close relationship to
        the member that they could choose an annuity
        equivalent to the option one retirement as a
        benefit after death in service.
             "The Board of Trustees of the Teacher
        Retirement System has instructed me to ask
        your opinion on the question of whether it
        had the power to make this Interpretation of
        the teacher retirement law."
        The following are the statutes involved:
        Section 5 (1) of Article 2922-l, Vernon's Civil Stat-
utes.
             "Sec. 5 (1).  Eligibility to and Allowances
        for Service Retirement.



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Mr. Frank M. Jackson, page 4 (C- 201)


            "Any member desiring service retirement
       shall make written application therefor to the
       State Board of Trustees. A member who satisfies
       the following conditions and minimum require-
       ments shall be eligible for service retirement
       upon the terms and at the times here stated:
            "(a) At the last day of any month in
       which the member shall have attained the age
       of sixty-five (65) years, or more, and shall
       have completed ten (10) or more years of credit-
       able service, the member shall be entitled to
       retire with a standard service retirement bene-
       fit, consisting of a standard annuity (calcu-
       lated as provided in subsection 22 of Section
       l), the monthly installments of which shall be
       payable during the life of the annuitant.

              .   .    .

            "2,       Optional Service Retirement Benefits.
            "In lieu of any service retirement benefit
       allowable under the preceding subsection, and
       provided he shall make such election and nomi-
       nation at least thirty (30) days before the date
       fixed for retirement, the member may elect to
       receive the actuarial equivalent thereof In the
       form of a reduced monthly benefit payable through-
       out his lifetime, with the provision that:
              .   .    .

            "Option Four: In the event of his death
       before one hundred twenty (120) monthly pay-
       ments of such annuity have been made such pay-
       ments shall be continued to such person as he
       may nominate in writing, or to the executor
       or administrator of his estate, until the re-
       mainder of,the one hundred twenty (120) pay-
       ments have been made; or
            II. . .I,

       Section 5 (l), Article 2922-1, Vernon's Civil Statutes,
expressly specifies the conditions and minimum requirements
for service retirement (.     "shall be eligible for service
retirement upon the terms and at the times here stated:").


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Mr. Frank M. Jackson, page,'5 (C-.2Cz)0:'.'.'~


The 1955 Act (Acts 54th ~Legislature;.
                                     Chapter 530, S.B. #290
at page 1.655)effective November 6, ~956, eliminates the
statutory provision making the optional selection contingent
upon the claimant's living for thlrt days after retirement;
Since Attorney General's Opinion V-l,t
                                     65 was written June 17,
1952, It would apply to the then existing statute and would
not apply here.
       The rules and regulations of the Board of Trustees of
the Teacher's Retirement System of Texas relied upon in
refusing Mrs. Stubbs' claim is based upon the previous stat-
ute and is not In conformity with the present law. The
Board's rules and regulations cannot overthrow the clear
words of the statute or Impose any additional conditions on
the claimant.
        This office construes the statement that "all pro-
visions of the law Inconsistent with the provisions of this
Act are hereby repealed to the extent of such inconsistency"
to mean that any previous laws inconsistent with the Acts of
the 54th Legislature are repealed. Since the 1955 Act (Acts
ofthe 54th Legislature) leaves out the statutory,provision
making the optional selection contingent upon the claimant's
living for 30 days after retirement, we feel that it was the
intention of the Legislature to change the law. In fact, an
amendment operates to repeal any provision of the'orl inal
act that is omitted. State v. Andrews, 20 Tex. 30 (1870).
                                 5:.
        Therefore, it Is the opinion of this office that Miss
Charlotte P. Cornell's retirement was effective April 30,
1963; that such retirement was an accomplished fact; and
that under the terms of the present Teacher's Retirement Law
in effect at the date of Miss Cornell's retirement the "guaran-
teed ten year annuity" under Option 4 became binding, certain,
and effective on April 30, the date of retirement,  and that
Miss Cornell was absolutely entitled to the Option 4 annuity
as an obligation fixed and certain.   Furthermore, since Mrs.
Stubbs is her nominee under the statute she is entitled to
receive the $269.93 annuity each month for 120 months.

                         SUMMARY
            When a teacher retires under Section
            5, Article 2922-1 of the Teacher
            Retirement Act and chooses Option 4,
            her ten year annuity becomes binding,
            as the requirement of the original


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Mr. Frank M. Jackson, page 6 (C- 201)


             1937 act that she live 30 days after
             retirement was repealed by the 1955
             amendment.

                           Yours very truly,
                           WAGGONER CARR
                           Attorney General



                               Bill Morse, Jr.
                               Asslstant
BMjr:sj:ms
APPROVED:
OPINION COMMITTEE
w. v. Geppert, Chairman
John Reeves
Albert Jonea
Linward Shivers
Robert Smith
APPROVED FOR TRE ATTORNEY GENERAL
By: Stanton Stone




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