        THEAITORNEYGENERAL
                OF TEXAS
                    AUSTIN.   TEXAS   78711

                      February 18, 1977




The Honorable Leonard Prewitt          Opinion No. H-945
Executive Secretary
Teacher Retirement System of Texas     Re: Purchase of Teacher
1001 Trinity Street                    Retirement credit for
Austin, Texas 78701                    service as a teacher in
                                       the armed forces.

Dear Mr. Prewitt:

     You have presented several questions for our considera-
tion concerning the ability of a member of the Teacher
Retirement System to purchase out-of-state teaching credit
for teaching while such person was a member of the United
States Armed Forces.  In this regard, you first ask:

          Does teaching at a United States military
          service academy or teaching as an instructor
          in any Reserve Officers Training Corps
          program while a member of the United States
          Armed Forces qualify for purchase as out-
          of-state teaching service under Section
          3.26 of the Texas Education Code?

Section 3.26 of the Texas Education Code states:

             (a) Any member of the retirement system
          who has been employed as a teacher or as
          an auxiliary employee in any public school
          system maintained in whole or in part by
          any other state or territory of the United
          States or by the United States for children
          of United States citizens may purchase
          equivalent membership service credits under
          this retirement system for such service.



                          P. 3949
The Honorable Leonard Prewitt - page 2   (H-945)



     Certainly, there are numerous types of fact situations
which are encompassed in your questions, and the determination
of whether a particular situation falls within the statute
involves a determination of fact. The Legislature, in this
case, has specifically delegated the authority to make such
fact determinations to the State Board of Trustees of the
Teacher Retirement System in section 3.23, which reads, in
pertinent part:

             (a) Under such rules and regulations as
          the State Board of Trustees may adopt a-
          memberan         xlowed membershipservice
          credit for each year of service rendered in
          accordance with the provisions of this
          chapter if he has made and maintained with
          the retirement system  all deposits and
          payments required by this chapter or prior
          existing laws.   (Emphasis added).

In view of the foregoing, we cannot say as a matter of law that
a member of the military employed as a teacher in a United
States Armed Forces service academy or as an instructor in
a Reserve Officers Training Corps program in a public school,
is or is not eligible under 3.26 to purchase membership
service credits.

     Although your remaining questions are conditioned on an
affirmative answer to the first question, we will nevertheless
consider them on the assumption that should the State Board
of Trustees of the Teacher Retirement System reach an
affirmative conclusion on the issue presented by your first
question, these questions will become relevant. The remaining
questions are as follows:

             [M]ay such service be purchased, at
          the option of the member of the Retirement
          System, under either Section 3.26 of the
          Code as out-of-state teaching service,
          or under Sections 3.23 and 3.24 of the
          Code as military service?

              [Mlay such service be purchased twice
          by the member of the Retirement System
          under both Section 3.26 of the Code as
          out-of-state teaching service and Sections
          3.23 and 3.24 of the Code as military
          service?




                        P. 3950
;   .




        The Honorable Leonard Prewitt - page 3   (H-945)



                     [M]ay such service be purchased by the
                 member of the Retirement System as out-
                 of-state teaching service under Section 3.26
                 of the Code when the member has the maximum
                 military service permissible under Section
                 3.23 of the Code?

             Section 3.26(a) (quoted above) permits any member of
        the retirement system who has been employed as a teacher or
        auxiliary employee in an out-of-state public school system
        to purchase equivalent membership service credits for such
        service. Section 3.26(c) goes on to provide that:

                     (c) For each year that deposits are made,
                 the member shall be granted immediately
                 upon payment of the required deposit one
                 year's membership service credit subject,
                 however, to the special conditions which
                 are:

                      (1) No person shall be allowed to
                      acquire credits on the basis of
                      employment as a teacher or auxiliary
                      employee outside this state in excess
                      of one year for each one year of
                      service in Texas..

                       .   .   .   .

                       (3) No more than 10 years' total
                       credit can be purchased under the
                       provisions of this section.

             Section 3.23 provides that:

                      (b) Any member who performed one or more
                  years of military duty while a member of
                  the retirement system shall be permitted to
                  deposit to his individual account in the
                  member savings account for each year of
                  duty an amount equal to his deposits made
                  with the retirement system during the last
                  preceding full year of service as a teacher
                  or auxiliary employee. He shall then be
                  entitled to one year of membership service
                  credit for each year of military duty.




                                       P. 3951
The Honorable Leonard Prewitt - page 4   (H-945)



              (c) Any member who performed one or more
          years of military duty prior to becoming
          a member of the retirement syxem shall be
          permitted to deposit to his individual
          account in the member savinas account for
          each year of such military duty, but not to
          exceed five years, an amount equalohis-
          deposits made with the retirement system
          during the first full year of service as a
          teacher or auxiliary employee after becoming
          a member of the retirement system. He shall
          then be entitled to one year of membership
          service credit for each year of military duty.
           (Emphasis added).

If a member of the retirement system has performed such service
so as to fall within either of these categories, we can
determine no statutory basis for precluding that member
from choosing the category under which he wishes to purchase
membership service credits.

     We note that section 3.24 contains no provision for
 urchase of membership service credit. Instead section 3.24
!kr---
   ows a member who has performed military duty to count
years of military service for the purpose of determining
el;gi;ility for retirement but not for the purpose of
ca cu sting the amount of benefits payable to the member on
retirement. A person who has performed military service but
who fails to make deposits entitling him to membership service
credits under either section 3.26 or 3.23, may still be
granted military leave credits under section 3.24.

     Therefore, we answer your second question in the
affirmative:  a person eligible to purchase membership service
credits under both sections 3.26 and 3.23 has the option of
choosing the section under which he will purchase membership
service credits. If membership service credits have not been
purchased the person may receive military leave credits for
time served on military duty.

     Your third question concerns whether a member who
qualifies to purchase membership service credits under both
sections 3.26 and 3.23 may purchase double credits for the
same period of time, i.e. may purchase ten years' membership
service credit for fiveears   of service as a member of the
military and as a teacher in an out-of-state public school
system. Section 3.21 provides:


                       P. 3952
*   .




        The Honorable Leonard Prewitt - page 5       (H-945)



                      (a) The State Board of Trustees shall
                  determine, by appropriate rules and regulations
                  how much service in any  _ vear
                                              _      is equivalent to
                  one creditable year of service, ---    but in no case
                  shall more - than -one creditable year
                                                       -     of
                                                             - service
                  be
                  -  givenor-_   all  service   inone
                                                ----     school year.

                     (b) Years of creditable service at retire-
                 ment . . . shall consist of the number of years
                 of membership service credits . . . and military
                 leave credits to which [a member] is entitled.
                  (Emphasis added).

        The language of this section clearly prohibits the purchase
        of double membership service credits for one year of service.
        Additionally, we believe this section and section 3.24
        prohibit receiving unpurchased military leave credit for the
        same time period for which a member has purchased membership
        service credits. Therefore, your third question is answered
        in the negative.

             Your final question concerns whether a person who has
        received maximum military membership service credits under
        section 3.23 may purchase additional membership service
        credits under section 3.26.

             Under section 3.23(b) no maximum is placed on the number
        of years of service credit which may be purchased by a member
        of the retirement system who "performed one or more years
        of military duty while a member of the retirement system."
        Section 3.23(c) specifies that a member who performed his
        military duty prior to becoming a member of the retirement
        system is limited to a purchase of five years of membership
        service credits for performance of military duty. If a
        person has been determined to be eligible under both sections
        3.23 and 3.26, we can find no intention, embodied in
        affirmative legislation, to prohibit purchase of additional
        years of service credit under section 3.26 beyond the
        maximum provided in section 3.23(c), as long as double credit
        is not received for any one year. Cf. State v. Rapport, 69
        A.2d 645, 648 (Conn. 1949). We believe such a?i interpretation
        does not contravene the purpose of the Teacher Retirement
        System statutes as expressed by the court in Teacher Retirement
        System v. Duckworth, 260 S.W.Zd 632, 636 (Tex. Civ. App. --
        Fort Wozh 1953) aff'd, 264 S.W.Zd 98 (Tex. 1954):




                                   P. 3953
                                                             .   I




The Honorable Leonard Prewitt - page 6 (B-945)



          [T]he principal purpose of our teacher
          retirement statute is to provide support
          for teachers after their teaching days
          are over, and courts should give such a
          statute a liberal construction in order
          to effectuate the purpose intended.

Therefore, your final question is also answered in the
affirmative with the caveat that more than one year
of credit may not be received for any one year of service.

                     SUMMARY

         If the Board of Trustees of the Teachers
         Retirement System should determine that a
         member of the military who has taught at
         a United States military service academy
         or as an instructor in a Reserve Officers
         Training Corps program is eligible to
         purchase out-of-state teaching service
         credits under section 3.26 of the Texas
         Education Code, that person may choose
         to purchase membership service credits
         under either section 3.26 or 3.23. A person
         may not receive more than one year of
         creditable service for time served in any
         one school year and therefore may not purchase
         double service credits under both sections.
         However, a person who qualifies to purchase
         membership service credits under both sections
         may purchase credits beyond the maximum
         allowed by section 3.23(c) if he purchases
         the additional credits under section 3.26 and
         he does not receive more than one year
         of creditable service for service performed
         in any one school year.




                               Attoney General of Texas




                          P. 3954
I   .




        The Honorable Leonard Prewitt - page 7   (H-945)



        APPROVED:




                               Assistant




        Opinion Committee

        jwb




                                P. 3955
