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       The Attorney                General of Texas
                        February        5,     1980




    Honorable Joseph N. Murphy, Jr.      Opinion No. MW-138
    Executive Director
    Employees Retirement System of Texas Re: Whether     reemployment     by
    P. 0. Box 13207, Capitol Station     the state    of a retired    state
    Austin, Texas 787ll                  employee entitles him to resume
                                         membership    in the retirement
                                         system and establish retirement
                                         credit for service not previously
                                         established.

    Dear Mr. Murphy:

           You ask whether a person who retired from both state employment and
    elective official service, received retirement   benefits for almost three
    years, and then returned to state employment may take advantage of the
    following provision of the employee’s retirement act:

               . . . A member with service as an elective state
               official may, prior to leaving state employment or
               state office and upon payment of all applicable
               contributions, fees, and interest applicable from the
               fiscal    year   in which creditable      service  was
               performed,     receive   creditable service    for any
               calendar year in which the member was eligible to
               take the oath of office, or in which he served, as an
               elective state official.

    Acts 1979, 66th Leg., ch. 747, at 1835 (to be codified as V.T.C.S. art. 6228a
    S 3.A.3.) (emphasis added).

           The retirement statute defines member as “any officer or employee
    included in the membership of the System as provided in Section 3 of this
    Act.” V.T.C.S. art. 6228a, S LC. Section 3 states who is eligible for the
    elective state official class and the appointive officer or employee class in
    the retirement system. However, section 3 also states that “[mlembership is
    terminated by . . . retirement. . . .‘I V.T.C.S. art. 6228a, SS 3.A.5, 3.D.
    Thus, someone who has retired is no longer a member of the retirement
    system and is not eligible to receive creditable service under the provision




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Honorable Joseph N. Murphy, Jr.      -   Page Two        (NW-138)



you inquire about. Cf. State                   523 S.W.2d 453 (Tex. Civ. App. - Austin 1975,
no writ) (person wsretired        under County and District Retirement System is not a
member). This interpretation      is supported by the fiscal note attached to this provision
when enacted by the 66th Legislature. The cost of the amendment was calculated on “the
basis of persons currently members of the Employees Retirement System who would be
eligible to purchase service of this type. . . .‘I Fiscal Note to House Bill No. 1147, April 26,
1979, filed in Legislative Reference Library.

       You also ask whether reemployment by the state of a retired state employee entitles
him to resume membership in the retirement system and establish retirement credit for
service not previously established.        Section 5.B.4. of article 6228a relates to the
reemployment of retired appointive officers or employees.          It states that any retired
appointive officer or employee may return to state employment on a temporary basis, as a
part-time employee, or a consultant.        Provision is made for suspension of retirement
benefits after a certain time.          It expressly provides that “[alny retired member
temporarily employed in a class of service from which he has retired shall not contribute
to the Retirement System during such reemployment, and the Retirement Plan in effect
at the time of his original retirement shall remain unchanged.”           V.T.C.S. art. 6228a,
S 5.B.4. This clearly states that retirees shall not resume the status of contributing
members to the retirement system on reemployment by the state.              You inform us that
under your long-standing      practices,   retired state employees who return to state
employment do not become members of the system. The construction of a statute by the
state agency charged with its administration is entitled to great weight. Armco Steel
Corporation                                          386 S.W.2d 894 (Tex. Civ. App. - Austin
1965, writ ref’d n.r.e.1. In our opinion, reemployment by the state of a retired state
employee &es not entitle him to resume membership in the retirement system and
establish retirement credit for service not previously established.

                                         SUMMARY

            A state employee relinquishes membership in the retirement
            system when he retires.      He does not resume membership upon
            reemployment with the state, and hence is not a member of the
            retirement    system eligible to receive creditable service under
            V.T.C.S. article 6228a, S 3.A.3.




                                               MARK     WHITE
                                               Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General




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        Honorable Joseph N. Murphy, Jr.   -   Page Three    (NW-138)



        Prepared by Susan Garrison
        Assistant Attdrney General

        APPROVED:
        OPINION COMMITTEE

        C. Robert Heath, Chairman
        Jim Allison
        David B. Brooks
        Walter Davis
        Bob Gammage
        Susan Garrison
        Rick Gllpin
        Bruce Youngblood




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