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                      The Attorney                 General of Texas
                                              June   15,    1978

JOHN L. HILL
Attorney General


                   Honorable Tom Massey                            Opinion No. Ii- 1184
                   Chairman
                   House Committee on Public                       Re: Multiple elections between
                     Education                                     the     Optional      Retirement
                   State Capitol                                   Program     and   the     Teacher
                   Austin, Texas 787ll                             Retirement System.

                   Dear Representative   Massey:

                         On behalf of the Committee on Public Education you have asked if a
                   person may again elect to participate in the Optional Retirement Program -
                   a special ‘program for faculty members of Texas institutions      of higher
                   education - after having been required, because of a change in employment,
                   to transfer from an Optional Retirement Program to the Teacher Retirement
                   System.

                          Participation in the Optional Retirement Program is limited to “faculty
                   members” as defined in the Texas Education Code.         Educ. Code SS 51.353,
                   51.352(4). Persons who teach in the public school system of the state are
                   ineligible for such participation; they are required to become members of the
                   Teacher Retirement System as a condition of their employment.      Educ. Code
                   s 3.03.

                           You advise that while employed as a faculty member at a public
                   institution of higher education, an individual timely elected to participate in
                   the Optional Retirement Program. Subsequently he accepted employment as
                   a teacher in the public schools and became a member of the Teacher
                   Retirement System, as required by law, terminating his Optional Retirement
                   Program participation.    Now, he has left the public school position and has
                   again become a “faculty member” within the meaning of the Optional
                   Retirement Program provisions. He wishes to drop his Teacher Retirement
                   System membership and resume participation         in the Optional Retirement
                   Program.

                         An identical situation was considered in Attorney General Opinion M-
                   1027 (1971) prior to the adoption of title three of the Education Code. It




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Honorable Tom Massey      -   Page 2’ (H-1164)



construed the statutes then in force (former articles 2922-13 and 2922-1.03,
V.T.C.S.) to prohibit a series of elections between retirement systems; it concluded
that persons who leave faculty-member positions to become public school teachers
must at that time become members of the Teacher Retirement System Andymust
remain Teacher Retirement        System members if they later return to “faculty
member” status.      The opinion was based principally upon the language of the
statutes, and upon a previous Attorney General Opinion, M-647 (1970), which held
the Optional Retirement Program to be for “faculty members” only. Opinion M-647
also held that public school employees who were former “faculty members” were
not within that definition.

       The statutes upon which Attorney General Opinion M-1027 was based were
incorporated    into the Texas Education Code as sections 3.03 and 51.355 in
substantially unaltered form. The legislative acts so incorporating them provided
that no change in substantive law was intended, but that only a recodification    of
current laws was contemplated.      See Acts 1971, 62nd beg., ch. 405, at 1449; Acts
1971, 62nd Leg., ch. 1024, at 3072FWe noted in Attorney .General Opinion H-371
(1974) that the Legislature, though presented with several opportunities to change
the M-1027 result, had not done so, and we there reiterated the conclusion that the
statutes allow only a single opportunity to elect between retirement systems.

        Nothing has come to our attention that would require a result different from
that reached by those opinions. In liiht of the earlier opinions, the administrative
 construction and the Legislature’e failure to amend the statute, it is our view that
 under the present statute a person may exercise the option to participate in the
 Optional Retirement Program only once.

                                   SUMMARY

           Under current law a person may exercise the option to
           participate in the Optional Retirement Program only once.




APPROVED:




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      Honorable Tom Massey   -   Page 3 (~-1184)




      Opinion Committee

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