                     June 17, 1952


Mrs. B. B. Sapp          Opinion No. V-1465
Executive Director
Teacher Retirement       Re:   Actively employed or
  System of Texas              retired status of a
Austin, Texas                  member of the Teacher
                               Retirement System who
                               dies less than 30 days
                               after effective date
Dear Mrs., Sapp:               of retirement.

          Yo'ur req~uest for an opinion concerning
the membership status, active or retired, under the
Teacher Retirement Law of Dr. Clarence T. Gray at
the time of his death on May 20, 1951, reads in part
28 follow8:

           "Dr. Clarence T. Gray asked the Teacher
     Retirement Department for retirement benefits,
     stating that his work with the.University of
     Texas would terminate April 30, 1951. The re-
     quest was made April 19, 1951, and the appli-
     cation completed by Dr. Gray indicated that
     he wished to receive his annuity payments under
     Option No. I. Or,. Gray died May 20th.

          "This department has ruled that Dr. Gray,
     under the circ,umstancea, was not entitled to
     retirement benefits, but died an active member,
     and therefore, Mrs. Gray Is entitled to the re-
     turn of Dr. Gray's accumulated deposits in the
     System but is not entitled to retirement bene-
     fits for the following reasons:

          "Section 5, Subsection 7, Paragraph 5,
     of the retirement law, as amended by the 47th,
     48th, 50th and 518t Legislatures, reads as
     follows:

          "'With the provision that no optional
     selection shall be effective in case a bene-
     ficiary dies within thirty (30) days after
     retirement and that such 2 beneficiary shall
     be considered as an active member at the time
Mrs. B. B. Sapp, page 2   (v-1465)


     of death, any member may, until the first
     payment on account of any service benefit
     become8 normally due, elect to receive his
     prior-service annuity in an annuity payable
     throughout life, or he may elect to receive
     the actuarial equivalent at that time, of his
     prior-service annuity in a reduced prior-
     service annuity payable as provided in Op-
     tions (l), (2), or (3) above, provided that
     all payments under all prior-service annui-
     ties are subject to adjustment by the State
     Board of Trustees 28 provided in Section 5,
     SUbSeCtiOn 2, Paragraph (b) of this Act; pro-
     vided further, that the same option must be
     Selected by 2 member for the payment of his
     prior-service annuity as Is Selected by the
     member for the payment of his membership
     service annuity.'

          "Since Dr. Gray Stated that his ServiCeS
     with the University of Texas would terminate
     April 30, 1951, 2nd since he chose Option No.
     I, this department holds that he died an ac-
     tive member, as he died within less than
     thirty day8 after the effective date of his
     retirement. This department has received
     the deposits for the work rendered at the
     University of Texas through the month of
     April, 1951*



          "In view of the fact that Dr. Gray ap-
     peared on the University of Texas payroll
     through April 30, 1951 and since his appli-
     cation Stated that his services would termi-
     nate on April 30, 1951, and further, since
     he died on May 20, 1951, less than thirty
     day8 after the effective date of his retire-
     ment, are we within our right8 in holding
     that Dr. Clarence T. Gray died an active mem-
     ber not entitled to retirement benefit8 as
     set forth in Option No. I?"

          Section l(22) of the Teacher Retirement Law,
Article 2922-1, V.C.S., 28 amended, provides as follOW8:

          "'Retirement' shall mean withdrawal
     from service with a retirement allowance
     granted under the provisions of this Act."
Mrs. B. B. Sapp, page 3      (V-1465)


          Subd,ivision 1, of S,ection 5 of .Article 2922-l
provides in part:

              "Any member may retire upon written ap-
         plication to the State Board of Trustees.
         The effective date of retirement for any mem-
         ber, making application under this Act, shall
         be, 2t the option of Bald member, forthwith
         or as of the end of the school year then cur-
         rent, provided 0 D -'

              Subdivision 7 of Section 5 further provides:

               "With the provision that, no optionai se-
         lection shall be effective In case a benefi-
         ciary dies within thirty (30) days after
         retirement, 2nd that Such a beneficiary shall
         be considered as an active member at the time
         of death, any member may until the first pay-
         ment on account of any service benefit becomes
         normally due e,lect to,receive his membership
         annuity in fan annuity payable througho,ut life,
         or he may elect to receive the act,uarlal equiva-
         lent at that time, of his membership annuity
         in a reduced membership annuity payable through-
         o,ut life with the provision that:

              "Option (1). Upon his death, his reduced
         membership annuity shall be continued through-
         out the life of, and paid to, such person 2s he
         shall nominate by written designation duly ac-
         knowledged and filed with the State Board of
         Trustees at the time of retirement; or 0 0 0'

          This 8ubdiviSiOn also contain8 a similar pro-
vision with respect to a member'8 prior-service annuity.
Under the quoted provisions of the Teacher Retirement
Law, 2 member eligible for service retirement under sub-
division 1 of Section 5, Article 2922-1, may elect to
retire under any one of the optional allowances set out
In Subdivi8iOn 7 of Section 5, provided he make8 his
election before "the first payment on account of any
service benefit become8 normally due." But subdivision
7 of Section 5 specifically provide8 (1) that no such
option21 selection shall be effective in case a benefi-
ciary member dies within thirty days after retirement,
and (2) that s'uch a beneficiary member who dies within
thirty days after retirement under an optional selection
"shall be considered 2s an active member at the time Of
Mrs. B. B. Sapp, page 4     (V-1465)                           -.




death." Thus, the Legislature ha8 provided that the
thirty-day provision of subdivision 7 0,f Section 5 Is
to be calc,ulated from and after the date that the mem-
ber has been retired with an optional selection allow-
ance granted. Section l(22) of Article 2922-1, define8
"retirement" for the purpose of the law to mean "with-
drawal from service with a retirement allowance granted."
Woods V. Reilly, 147 Tex. 586, 218 S.W.2d 437 (1949).

          Under the fact8 submitted, Dr. Gray on April 19,
1951, made application to retire in accordance with sub-
divl8iOn 1 of Section 5 and stated that he would withdraw
from service with the University of Texas on April 30,
1951: On the date of application he attempted to select
"Option 1" settlement. By stating that his work,at the
University would be terminated on April 30, 1951, he
thereby indicated that he should be retired forthwith
after his employment with the University Ceased and not
at the end of the then current school year. Such 2 choice
is granted member8 eligible to retire in subdlvision 1 of
Section 5. His retirement prior to April 30, 1951, could
not have been had under these circumstances.  There must
be 2 withdrawal from service before service retirement
benefit8 may be granted under the Teacher Retirement Law.
Art. 2922-1, Sec. l(22) and Sec. 5, subd. 1, V.C.S, Dr.
Gray died on May 20, 1951, which was less than thirty days
from April 30, 1951, the earliest date on which he could
have been retired under the law and facts herein considered.
Thus, he had not retired within the meaning of the act,
but was an "active member' within the meaning of SUbdiViSiOn
7 of Section 5 at the time of hi8 death.
          Based upon what the Legislature has eXpre88ly
provided in the Teacher Retirement Act, the r,uling of
the Teacher Retirement System of Texas that Dr. Gray died
an 'active member" within the meaning of S'UbdiViSiOn 7 of
Section 5, Article 2922-1, V.C.S., Is correct, Such
Change8 as may be necessary in the law in order to reach
a more just and equitable result Is 2 matter solely within
the discretion of the Legislature.




                          SUMpARY

          Under the existing law a member of the
     Teacher Retirement System who makes an optional
     selection under Section 5, 8ubdlviSiOn 7,
Mrs. B. B. Sapp, page 5   (v-1465)



     Article 2922-1, V.C.S., and who die8 within
     thirty days after termlnation of active serv-
     ice, is an active member at the time of death,
     although application for retirement was made
     more than thirty day8 prior to death. Sec.
     1(22), Art. 2922-1, V.C.S.; Wood8 v. Reilly,
     147 Tex. 586, 218 S.W.2d 4377949).

                            Your8 very truly,

APPROVED:                     PRICE DANIEL
                            Attorney General
Mary Kate Wall
Reviewing Assist2nt

Charles D. Mathews          BY
First Assistant                  Chester E. 01118On
                                          AsEkistant
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