The Honorable Kenneth Ii.Ashworth       Opinion No. H-871
Commissioner
Coordinating Board                      Re: Whether teaching
Texas College & University System       assistants are required
Austin, Texas   78711                   to be members of the
                                        Teacher Retirement
                                        System.
Dear Commissioner Ashworth:
     You have asked us:
          Under the Teacher Retirement System of
          the Texas Education Code aresteaching
          assistants that are classified as part-
          time employees of a university required
          to be members of the Teacher Retirement
          System?
     We begin by noting thatthe     Texas Education Code provides:
          Every person who may be employed as
          a teacher or auxiliary employee in any
          public school or other branch or unit
          of the public school system of this
          state shall become a member of the
          teacherretirement system as a condition
          of his employment. Section 3.03(b).
          (Emphasis added).
"Teacher" is defined as:
          any person employed to render teaching
          service on a full-time, regular salary
          basis bythe governing board of any
          echool district created under the laws




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        The Honorable Kenneth H. Ashworth - page 2 (H-871)


                 of this state, by any county school
                 board, by the State Board of Trustees of
                 the Retirement System, by the State Board
                 of Education, by the Central Education
                 Agency, by the~board of regents of any
                 college or university, or by any other
                 legally constituted board or agency of any
                 public school. Section 3.02(a) (3).
                  (Emphasis added) q
        "Auxiliary employee" is defined as:
                 a person other than a 'teacher' employed
                 0" 5 full-time, regular ealary basis by
                 the boards or asencies listed in Sub-
                 section (a)(3) of this section. Section
                 3.02(a) (5). (Emphasis added).

             The "full-time" requirement would seemingly exclude
        part-time teaching assistants, as well as bus drivers, cafeteria
        workers and similar employees from either of the above
        definitions, except that since 1961 the Board of Trustees of
        the System has applied an administrative regulation which
        provides:
                  En$loyt    by pul+ic! stafe-supported
                  e ucat onal instrtutlons In Texas for
                  one-half or more of the standard wm
                  load at afasoearable      to the rate
                  forother persons employed in similar


                  Trustees, Teacher Retirement System of
                  Texas, section 334.03.01.001. (Emphasis
                  added).
             It is urged by some that this administrative definition
        of "regular, full-time service" is at variance with the
        intended meaning of the statutory phrase, "full-time, regular
        salary basis," and should be disregarded. See Brown Ex ress,
        Inc. v. Railroad Commission, 415 s.w.2a 39479-x.
        --                                                   -!i&
        1967).




                                    p. 3673
The Honorable Kenneth Ii.Ashworth - page 3   (H-871)


     The rule adopted by the Board of Trustees in ~1961
replaced one in effect since 1937 which authorized member-
ship for any person whose public school salary constituted
50% or more of all current salary earned. The various
educational institutions in the state have a substantial
degree of autonomy in determining standard workloads for
both teachers and other employees. The workload varies
among the different types of work -- for example, that of ,a
college teacher is generally measured by the number of
"hours" taught, and that of a bus'driver by the route he
drives. A cafeteria employee is paid according to the
number of clock hours worked --which will often be lesb than
the hours required for a school office secretary.
     The Texas Education Code sections dealing with the
Teacher Retirement System were adopted in 1969, after the
Board's definition had been implemented for a number of
years and after many persons had become members of the
System pursuant to its terms. Section 3.03(a) of the Code
specifies that "All persons who on the effective date of
this code were members of the Teacher Retirement System of
Texas shall continue as members subject to the provisions of
this chapter. . . -" Section 3.02(b) of the Code provides
that "[iln case of doubt the State Board of Trustees of the
retirement system shall determine whether a person is a
'teacher' or 'auxiliary employee' within the contemplation
of [Chapter 31." Section 3.59(i) of the Code states:
"Subject to the provisions in this chapter, the State Board
of Trustees shall, from time to time, establish rules and
regulations for membership eligibility. D s *"
     We cannot say that the definition of "full-time,
regular salary basis" which the Board of Trustees has admin-
istratively supplied and followed for many years in the
absence of legislative objection is so unreasonable and
arbitrary that Texas courts would disregard it. During the
past fifteen years, the Legislature has declined to alter
the rule so that it would exclude teaching assistants and
other employees who work substantially less than 40 hours
per week. In that period of time, persons have accumulated
credit in the System and in some cases have received benefits
attributable to service as teaching assistants, cafeteria
workers, secretaries, etc. Eight years after the rule became
effective, the Legislature specifically indicated that persons
who were presently members of the Teacher Retirement System




                           p. 3674
  The Honorable Kenneth H. Ashworth - page 4 (H-871)


  would continue their membership notwithstanding codification
  of the retirement statutes. While we would not have constructed
  the rule in this manner, we do not believe we can do in the
  opinion process what the Legislature a@Teacher   Retirement
  system have declined to do. This determination is in
  keeping with the rule that such laws should be liberally
  interpreted to provide security for members and to encourage
  qualified persons to become and remain teachers in public
  education. See w0?a8  v. R;illy, 218 S.W.,Zd437 (Tex. Sup.
  1949); Teacher Retirement ystem v. Duckworth, 260 S.W.ZH
  632 (Tex. Civ. App. -- Fort WorthT953), afFcl 264 S.W.2d
  98 (Tex. Sup. 1954).
                      SUM   MA    R Y
            Teaching assistants at public universities
            are required to be members of the Teacher
            Retirement System of Texas if they are
            employed on a "full-time, regular salary
            basis" as that term has been defined by the
            Board of Trustees of the Teacher Retirement
            System of Texas.
                                 Very truly yours,



                                 Attorney General of Texas
APPROVED:



  DAVID M. KENDALL, First Assistant




  Opinion Committee
  jwb




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