                               July 29, 1971


Bon. Frank M. Jackson                      Opinion No. M-914
Executive Secretary
Teacher Retirement System                  Re:   Whether,,-        *
  of Texas                                       Section 3.25(b), Texas
Lowich Building;Third Floor                      Education Code, a retired
314 West Eleventh Street                         public school teacher may
Austin, Texas 78701                              return to teaching and
                                                 again qualify for retire-
                                                 ment so that his additiona
                                                 years of teaching are com-
                                                 puted in calculating his
Dear Mr. Jackson:                                new retirement status.
          Your recent letter requesting the opinion of this office
concerning the referenced matter states, in full, as follows:
               "We request your opinion on the following ques-
    tion   :

            "'Does Section 3,25(b) of the Texas Education
           Code (Chapter 889, 61st Texas Legislature,
           Regular Session, 1969) as amended by House Bill
           279, 62nd Texas Legislature, Regular Session,
           1971, permit a teacher who has retired to re-
           turn to teaching in Texas, work five, (5) con-
           secutive years and repay the amount of retire-
           ment benefit which he had received plus interest
           'and membership fees, and again become a member
           of the Retirement System so that the additional
           years of teaching service after retirement would
           be used in recalculating his retirement benefit?'
         "The Teacher Retirement System has interpreted
    Section 3.25(b) to permit reinstatement of membership
    service which was terminated by withdrawal of deposits
    or by absence from service but not to permit a person
    who had already retired and begun receiving retirement
    benefits to again reinstate his membership.



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Hon. Frank M. Jackson, page 2              (M-9*4)


           "Mr.       *, retired under the provisions of the
    Teacher Retirement Act from the Teacher Retirement
    System   on May 31, 1968, and three (3) months later
    returned to full-time teaching in the         * Indepen-
    dent School District, thereby forfeiting his retirement
    benefits during the time he was employed. He has con-
    tinued to work for three (3) consecutive years. Mr.
           * contends that after he has returned and worked
    forve       (5) consecutive years, he should, under the
    provisions of Section 3.25(b) of the Texas Education
    Code, be permitted to make deposits for these five (5)
    years of teaching since retirement, repay the amount
    of retirement benefits received, and have his retirement
    recalculated.
          "The Board of Trustees of the Teacher Retirement
     System has disallowed Mr.        * request but agreed
     to ask for an official interpretation of Section 3.25(b).
          "The Board's decision to deny the request was based
     in part on the following points:
          "1. The Teacher Retirement Law provides that
     the date for retirement for any eligible member shall
     be the last day of any month in which he makes written
     application to the State Board of Trustees.
          "2. The Attorney General has ruled in Opinion No.
     C-201, dated January 10, 1964, that after the effective
     date, retirement is an accomplished fact and that the
     retirement provisions are binding, certain and effec-
     tive on that date.
          "3. The Board of Trustees has adopted as part
     of their codified Rules and Regulations, Section
     15.63 which states:
          "'The 'Application for Retirement and Option
          Selection' form must be filed with the Teacher
          Retirement System on or before the date of
          retirement for standard annuity. An applica-


* Specific identification omitted in this opinion.


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Hon. Frank M. Jackson, page 3              (M-914)


         tion for retirement may be revoked at any
         time before the retirement date. The option
         selection cannot be changed after the last
         date for filing except by revoking the re-
         tirement. It can never be changed or the
         application revoked after the 'date of retire-
         ment.'
         "4. Section 3.37 of the Texas Education Code
    appears to definitely prohibit a retired person from
    returning to teaching, receiving additional retire-
    ment credit and having his benefits recalculated."
          The Texas Education Code, as amended by House Bill 279,
62nd Legislature, Regular Session, 1971, provides, in its relevant
sections, as follows:
          Sec. 3.25, subdivision,(b):
         "Any person who terminates or has terminated
    membership in the retirement system by withdrawal
    of deposits or by absence from service shall have
    the privilege of reinstating such terminated mem-
    bership by rendering service for five subsequent
    consecutive creditable years and.depositing the
    amount withdrawn plus membership fees for the years
    during which membership was terminated plus a rein-
    statement fee of two and one-half percent per annum
    from the date of withdrawal to date of redeposit.
    The reinstatement fees shall be credited to the state
    contribution account."
          Sec. 3.37:
          "EMPLOYMENT AFTER RETIREMENT.~ (a) Any person
     receiving a service retirement benefit from the
     retirement system may be employed in the public
     schools of Texas:
          "(1) on a part-time day-to-day basis only not
     to exceed 80 school days in any one sachool year as
     a substitute for an employee who is absent from duty:
          "(2) as a substitute in a vacant position until
     such position can be filled, but not to exceed 30
     days, but any substitute employment in a vacant posi-
     tion shall be deducted from the 80 days permitted as
     a substitute for an absent employee; or
                                -4457-
Ron. Frank M. Jackson, page 4               (M-914)



          "(3) on as much as a one-third basis if the
     retired member is over age 60.
          "(b) This employment will not affect any person's
     rights to any benefits under the retirement system.
     However, it will not entitle a person to additional
     creditable service under the retirement system and
     the person so employed shall not be required to make
     further contributions to the system.
          ,I. . .

         "(d) a person receiving a service retirement
    benefit from the retirement system who is employed
    in any position in the public schools of Texas except
    as provided in this section, shall forfeit all retire-
    ment beinefits for any month in which such employment
    occurs. Employment which begins as substituting may
    become permanent employment. A person who substitutes
    on a day-to-day basis in a regular position for an
    absent employee for more than 80 school days or for
    more than 30 school days in a vacant position and
    then continues in the'same position shall be con-
    sidered to have been a regular employee since the
    first day of employment and forfeits his retirement
    benefits for all months of employment in that posi-
    tion." (Emphasis added.)
          We are of the opinion that the provisions of Section
3.25(b) and Section 3.37, both quoted, supra, can be harmoniously
construed. Using such rule of construction, we hold that the
provisions of Section 3.25(b) governing reinstatment of member-
ship in the Teacher Retirement System'after the rendering of ser-
vice for five consecutive creditable years are not applicable to
persons who have retired from teaching and are eligible to'receive
retirement benefits.
          Therefore, Mr.        ? claim must be determined on the
basis of the provisions of Section 3.37. Section 3.37(b),
quoted supra, clearly states that retired persons teaching in
Texas schools are not entitled to additional creditable service
under the Teacher Retirement System.
          Accordingly, you are advised that the additional years
of teaching service rendered by Mr.        after his retirement

* See this note, supra.
                                -4458-
    ,


.

        Hon. Frank M. Jackson, page 5                    (M-914)


        cannot be used for purposes of recalculating his retirement
        benefits.
                                 SUMMARY
                  Section 3.25(b), Texas Education Code, providing
             for reinstatement of terminated membership in the
             Teacher Retirement System after the rendering of
             service for five subsequent consecutive creditable
             years, is not applicable to persons who have retired
             from the System and who are drawing retirement benefits.
                  Section 3.37(b), Texas Education Code, does not
             entitle a formerly retired teacher who is now teach-
             ing again to have the additional years of teaching
             service rendered after the date of his retirement
             used in recalculating his retirement benefits.
                                        Yo       very truly,




        Prepared by Austin C. Bray, Jr.
        Assistant Attorney General
        APPROVED:
        OPINION COMMITTEE
        Kerns Taylor, Chairman
        W. E. Allen, Co-Chairman
        James McCoy
        Scott Garrison
        John Banks
        Jack Goodman
        MEADE F. GRIFFIN
        Staff Legal Assistant'
        ALFRED WALKER
        Executive Assistant
        NOLA WHITE
        First Assistant
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