                         THEATTORNEYGENERAL
                                 OF TEXAS
                                           AUSTIN.        T-s                 78711



                                                 July    16,     1974



The     Honorable          Frank      M.     Jackson                           Opinion         No.        H- 348
Executive         Secretary
Teacher         Retirement           System      of Texas                      Re:     Circumstances                  in which   a
314 W.      11th St.       3d Floor                                            teacher         who        previously      has
Austin,         Texas      78701                                               forfeited         credits         accumulated
                                                                               m&r        Teacher           Retirement        System
                                                                               may     later        reinstate         them.


Dear      Mr.     Jackson:


            On behalf         of the Teacher             Retirement            System          of Texas,          you have
asked     two questions            concerning           the construction               of Art.        3. 25 (b) of the
Education         Code,      V. T. C. S. :


                        1. May    a person        reinstate           forfeited       credit     in the
                          Teacher          Retirement          System         by depositing               the
                          amounts          specified     in Section            3. 25 (b) of the
                          Texas       Education         Code     if his       only    credit        for
                          subsequent          service         meeting         the statutory           re-
                          quirement          of “five     subsequent              consecutive
                          creditable         years      or seven         subsequent            creditable
                          years      within     any ten-year             period”has          also         been
                          forfeited?


                        2. If such     reinstatement             is permitted,              would         the fact
                          that    the member’s            deposits         for     that     subsequent
                          forfeited        service      (a)     were.      withdrawn           or    (b) es-
                          cheated       to the state           under     the provisions              of Section
                          3.52     (d) of the Texas             Education            Code      prevent          the
                          applicant’s         reliance         upon it to satisfy              the require-
                          ments       of Section        3.25     (b)?



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The     Honorable          Frank        M.     Jackson             page      2




             These        questions          arise     from          the following             situation.               A presently
employed          teacher         rendered           creditable           service        for     six     consecutive               years
beginning         in 1943,        but termi.nated              her     membership                by withdrawing                    her
deposits       while       absent       from        service.           As    presently           provided               by Art.      3.04(d),
Education          Code,     V. T. C. S.,             her     termination            of membership                       caused      a
forfeiture         of accumulated              credits.            She,, returned              to teaching               in 1952    and
rendered          eight    consecutive             years       of creditable              service;            however,            she
forfeited      her      credits       for     this    period         because        her        membership                  was     termi-
nated    due to absence               from         service.           Her     deposits          for     this        period        were
never      withdrawn         from        the System.                 In 1972       she    again        returned             to service
in the public           schools       of Texas,             and is presently                attempting                  to reinstate
the forfeited           credits     accumulated                during        her    first       term         of employment
(1943 -1949)         on the basis            of five        consecutive            years        of subsequent                 service
during      her     second        term       of employment                  (1952-1960).


             Artic,le      3. 25(b),         Education            Code,       V. T. C. S.          provides               that:


                                  Any     person        who terminates                   or has         ter-
                           minated          membership               in the retirement                      sys-
                           tem     by withdrawal               of deposits           or by absence
                           from     service           shall    have         the privilege              of
                           reinstating          such        terminated            membership                  by
                           rendering           service         for    five       subsequent            con-
                           secutive          creditable           years      and depositing                   the
                           amount        withdrawn             plus     membership                fees        for
                           t,he years         during        which       membership                was         ter-
                           minated          plus     a reinstatement                fee     of two and
                           one-half          percent        per      annum        from      the date               of
                           withdrawal           to date        of redeposit.                The        rein-
                           statement          fee     shall       be credited            to the state
                           contribution             account.


             The     statute       does       not expressly               require         that in order                  to reinstate
forfeited       cred’_ts       on the basis         of subsequent   service the credits for                                         that
subsequent           service        must       be unforfeited,   and we have found no case                                           dealing
with    this    precise        issue.




                                                                       p.    1621
The      Honorable              Frank        l$.     Jackson            page       3




               The      privilege           of reinstating              previously              terminated             membership
and the consequent                    reinstatement                   of credits          for     the years            of such          member-
ship     is    granted          to “any        person,          ” Art.         3. 25 (b),         while        other       provisions             of
the Teacher              Retirement                 System       grant         rights      and privileges                  to “members,                ”
e.g.,         A,rts.     3. 24,      3. 26,          3. 31,     Education           Code,             V. T. C. S.          This     disparity
i.n language            indicates           that the privilege                    of reinstatement                   may      be exercised
by one who is not presently                                a member,              such     as     one who has               forfeited
membership               under        Art.          3.04.


               Art.      3. 25 (b) also              fails      to provide             a time         limit    following            the rendering
of the        required          subsequent               service       during          which          the privilege           is    to be exer-
cised.          Under       the      Judiciary              Retirement             Act,        Art.      6228b,        V. T. C. S. , the
lack     of a specified              time          limit      within     which         application             for    a refund            must      be
made      has        been     construed              to allow         an unlimited               delay        prior     to such          applica-
tion.         Attorney          General            Opinion       S-120         (1954).          Concerning             this    same
Teacher          Retirement             System,               this    office       has     reflected           conditions           promul-
gated     by the Board                of Trustees,                   which     were        not expressed                in the          statute
which         allows      purchase            of out of state                credits,           Art.      3. 26,       Education            Code,
V. T. C. S.            Attorney         General              Opinion         M-194         (1968).        In that          opinion        it was
stated        that     “[t]he       Board          has      no authority           to add        requirements                 not set       out
in the statutes.,”                      _~


               Generally,            the rule            of construction                 for    statutes        conferring               benefits
upon public             employees             is:     I’[A ] n act       that is         susceptible            of more            than    one
construction             will       be so interpreted                  as     to secure           the benefits              intended.         .    .   ”
53 Tex.          Jur.       2d 224,         225,         Statutes        9157      (1964).


               Such     pro-beneficiary                     construction               is compelled             by the state’s
public        policy     as      expressed               by the courts.                The       purpose          of the      Teacher
Retirement              System        is:


                              . .    . to provide               security          and create             an incentive              to
                              encourage              qualified         persons            to become            and     remain
                             teachers              in the Public             Schools           of Texas         . .    .    . the
                             Act     should          be liberally             construed               in order        to effec-
                             tuate      the whole             purpose          of the plan.



                                                                             p.    1622
The     Honorable           Frank      M.       Jackson          page        4




                            Woods      v.     Reilly,       218 S. W.             2d 437,        442    (Tex.     1949).


This     polic,y     has     ‘been     reiterated         and applied               to strike          down     a Board         of
Trustees          construction            which       diminished             a teacher’s           retirement           benefits
in Teacher           Retirement             System       et al v.          Duckworth,             260    S. W.        2d 632
(Tex.      Civ.      App.        - Fort      Worth      1953)     opinion           adopted,           264    S. W.     2d 98
(Tex.      1954).


              In light      of both       the statutory          language             and the strong             public        policy
involved,         it is     our    opinion       that under           Art.        3. 25    (b) a teacher             may       elect
to reinstate          previously            forfeited      credits           at any time           after      he has         rendered
the required           subsequent            service,          notwithstanding                the forfeiture             of credit
for    that    subsequent            service.


              Your     second        question         deals     with       the effect         of the withdrawal                  of the
deposits       for    the    subsequent           service        or their             escheat      to the state.


              Under       Art.      3.04,       the withdrawal               of deposits           is a manner               of forfeiture
parallel       to absence           from      service.          Since         it is    our    opinion         that in order               to
reinstat~e        membership              and credits          Art.        3. 25 (b) requires                 only     subsequent
service       for    the period           provided,         neither          the manner            in which           credit        for
the     subsequent          service         is forfeited,         nor        whether         the deposits            from       this
subsequent           service        have      e:scheated        to the           state,      is of consequence.
Otherwise           the state’s        public         policy    would            be contravened               by the imposition
of conditions             upon     teachers’          rights    under            the Teacher            Retirement             System
when      such      conditions         are      unexpressed            by        the statutes.


                                                         SUMMARY


                                Statutes  conferring   retirement    benefits   on public
                            employees    are to be liberally   construed     so as to secure
                            the benefits          intended.            Consequently,               forfeited          member-
                            ship     and credits          in the Teacher                  Retirement            System         of
                            Texas      may       be    reinstated          at any         time    following           the
                            rendering         of the required                subsequent            service,           Art.      3. 25(b),




                                                                      p.     1623
.         r




    The       Honorable   Frank   M.     Jackson      page        5




                          regardless      of the   state        of the membership            and credits
                          which   were    accumulated            during   this     subsequent       service.


                                                                        Very     truly     yours,




                                                                        Attorney         General    of Texas




                                         0&9/p
    DAVID        M.   KENDALL,         Chairman
    Opinion       Committee




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