       Joas     L.     El&IA
    ..wo-            0-u

                                            August 15,   1974


              The Honorable Dan Kubiak                      Opinion No. H-    371
              House of Representatives
              Capitol Station                                Re: Whether former participant
              Austin.  Texas  78767                          in Texas Teacher Retirement
                                                             System, who declined at the time
                                                             to exercise option to participate
                                                            .in Optional Retirement System,
                                                             may upon return to teaching after
                                                             educational absence elect to
                                                             participate in the Optional System.

              Dear Mr.         Kubiak:

                      The question is whether under certain circumstances    a teacher who
              returns to teaching in Texas has an option to participate in the Optional
              Retirement System or is limited to participation in the Texas Teacher
              Retirement System.

                       The facts, as they have been presented, are that the teacher in
              question was a faculty member at a state supported institution of higher
              education during the school year from September.1971. through May, 1972.
              The Optional Retirement System had become available to faculty members
              of this institution on Sept. 1, 1971 and we understand the teacher in question
              was advised of her option to participate in the System.    She refrained from
              exercising this option, electing to continue membership in the Texas
              Teacher Retirement System.       We understand that because the teacher lacked
              an advanced degree her employment terminated at the end of the 1971-1972
              school year and she withdrew all contributions she had made into the Teacher
              Retirement System.      Thereafter she completed her advanced degree work,
              and in September,1973,    she was again employed as a teacher in the same
              Texas state-supported institution of higher education in Texas.


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                                                                                   . .
The Honorable   Dan Kubiak    page 2    (H- 371)




        The controlling statute is Section 51.355, Texas Education Code
(formerly Art. 2922-11, Sec. 5. V. T. C.S.) which provides as follows:

                A faculty member who becomes eligible to participate
                in the optional retirement program and who is a member
                of the retirement system is hereby extended the option
                of continuing his membership in the retirement system
                or participating in the optional retirement program as
                hereinafter set forth. A faculty member who is eligible
                to participate in the optional retirement program on
                the date the optional retirement program becomes aail-
                able at the institution of higher education at which he
                is employed, no later than the 1st day of August of the
                 calendar year following the date on which the optional
                 retirement program becomes available at the institution
                 of higher education at which he is employed, shall elect
                 to participate or not to participate in the optional
                 retirement program.      A faculty member who becomes eli-
                 gible to participate in~the optional retirement program
                 subsequent to the date on which the optional retirement pro-
                 gram becomes available at the institution of higher education
                 at which he is employed shall make such election within
                 90 days following the date on which he becomes eligible
                 to participate in the optional retirement program.     A
                 faculty member exercising the option to participate in
                 the optional retirement program shall not thereafter be .
                 eligible for membership in the retirement system unless
                 he ceases to be employed by the Texas Public School
                 System other than in an institution of higher education.
                 A faculty member not exercising the option to participate
                 in the optional retirement program shall be deemed to have
                  chosen to continue membership in the retirement system
                  in lieu of exercising the option to participate in the optional
                  retirement program.     (emphasis added.)




                                       p. 1744
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. .
       The Honorable      Dan Kubiak    yge   3    (H-371)




                 We presume that the teacher in question during her original employ-
        ment and at the present time has qualified as a “faculty member” for
        purposes of Section 51.355, Texas Education Code. She was eligible to
        participate in the Optional Retirement System during her original tenure
        in 1971-1972 if she exercised her option on or before August first, 1972.
        Clearly the explicit language of Section 51.355 provides for only one elec-
        tion, not a series of elections, regardless  of the circumstances.

                The Optional Retirement Act has been amended several times since
        the issuance of Opinion No. M-1027 (1971) construing the statute, (then
        Article 2922-R) as permitting an election only once. (In addition to the
        repeal and codification in 1971 referred to previously herein, see Acts
        1973, 63rd Leg.,   p. 1368, ch. 521). The Legislature could have provided
        for a series of elections but has not done SO.
                                                                  .
                It is also noteworthy that the Legislature has provided for re-instating
        membership and service credits in the Teacher Retirement System after an
        absence (see particularly Sections 3.25 and 3.26, Texas Education Code) and
        even for retaining membership in either of the retirment systems during
        educational leaves, (see Sets. 51.101 through 51.108, Texas Education Code);
        These provisions demonstrate legislative awareness in this area.    Therefore
        the absence of provisions for more than one election forces the conclusion
        that only one opportunity to make an election between retirement systems
        was intended and that such an election, once made during the prescribed
        period, is considered binding on the individual teacher.

                     This construction of the statutory scheme draws further support
            from the provisions of Section 51.355 dealing with the converse situation
            where the faculty member initially elects to participate in the Optional
            Retirement System.      The statute provides that I’. . . A faculty member
            exercising the option to participate in the optional retirement program
            shall not thereafter be eligible for membership in the retirement system
            unless he ceases to be employed by an institution of higher education and
            becomes employed by the Texas Public School System other than in an
            institution of higher education. ” Had the teacher in question opted in
            1971-1972 to participate in the Optional Retirement System it would appear




                                                  p. 1745
                                                                              ’ .
The Honorable   Dan Kubiak   page4      (H-371)                                     . ..




that she would be bound by that election upon her return to teaching. By
the explicit language of Section 51. 355 she would have been ineligible for
membership in the Teacher Retirement System and no second election
would have been available.    Logically her election not to participate and
thereby to remain in the Teacher Retirement System would be judicially
construed as binding on her. In our opinion she would not be held entitled
to a second election.

                                    SUMMARY

                    Section 51.355, Texas Education Code, affords
                an opportunity for a faculty member to elect parti-
                cipation in the Optional Retirement System and a
                faculty member who fails to exercise the option
                when first available does not have a right to a second
                opportunity to exercise that option upon returning to
                teaching in Texas after terminating previous employ-
                ment and leaving the state to secure an advanced
                degree.

                                                  Very truly yours,



                                                         /JL!kb
                                                  JOHN L. HILL
                                                  Attorney General of Texas




                      irst Assistant




 DAVID M. KENDALL,       Chairman
 Opinion Committee




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