Untitled Texas Attorney General Opinion ( 1951 )

Mrs. B. B. Sapp
Director and Executive Secretary
Teacher Retirement System of Texas
Austin, Texas
Opinion No. V-1289
. Re: Legality of member of
Board of Trustees of
the Teacher Retire-
ment System appointed
under Article 2922-1,
pg s6, subset. (2) (d),
. . ., continuing to
serve es trustee upon
acceptance of retlre-
Dear Mrs. Sapp: ment benefits.
You have asked this office for an lnter-
pre~tatlonof Section 6, subsection (2) (d), Art-
icle 2922-1, V.C.S., which provides that three of
the trustees of the Teacher Retirement System
shall be members of the Retirement System and
that these members "shall serve for terms of six
years, or until their successors are qualified."
In your request,~you state that the
Board of Trustees of the Teacher Retirement System
has interpreted this provision to mean that If a
member of the Teacher Retirement System Is noml-
nated by the members of the System and is appointed
by the Governor and confirmed by the Senate, that
person may serve for a term of six years, even
though he accepts retirement benefits under the
Teacher Retirement Law before the expiration of his
term. You ask whether this Interpretation is cor-
rect.
Section 6 of Article 2922-1, V.C S., as
amended, Insofar as pertinent to thls opinion, pro-
vides as follows:
"(1) The general administration and
responsibility for the proper operation
Mrs. B. B. Sapp, page 2 (V-1289)
of the Retirement System and for making
effective the provisions of the Act are
hereby vested In a State Board of Trus-
tees . . .
" 2) The Board shall consist of
six (6I trustees, as follows:
(a) The State Life Insurance Com-
missioner, ex officio.
(b) The Chairman of the State
Board of Control of Texas, ex officio.
(c) A person nominated by the
State Board of Education for a term of
six (6) years who shall be confirmed
by a two thirds (2/3) vote of the Sen-
ate of the State of Texas present af-
ter submission to the Senate by the
State Board of Education of the per-
son nominated.
(d) Three (3) of the trustees
shall be members of the Retirement
System and shall be nominated by the
members of the-Retirement System for
a term of six (6) years each, accord-
ing to such rules and regulations as
the State Board of Trustees shall
adopt to govern such nominations pro-
vided that the first three (3) teach-
= to serve as members of the State
Board of Trustees shall be appointed
by the Governcr . . . The terms of
office of the first three
-- immediate y
er-trustees shall begin
after they have qualified and taken
the oath of office. They shall draw
for terms of two (2), four (4), and
six (6) years, which shall expire
August 31, 1939, and August 31, 1941,
and August 31, 1943, respectively.
Thereafter, the State Board of Trus-
tees shall rovide for the nomination
of three (3 teacher-members bienially
by popular election of members of the
Retirement System, from which the
Governor shall appoint one member to
the State Board of Trustees; said mem-
ber shall be subject to confirmation
by two-thirds vote of the State Sen-
ate. The members so appointed shall
Mrs. B. B. Saw, page 3 (v-1289)
serve for terms of six (6) years, or
until their successors are qualified.
. . .
"(3) If a vacancy occurs in the
office of a trustee, the vacancy shall
be filled for the unexpired term In
the same manner as the office was pre-
VIOUS~Y filled.
"(4) The trustees shall serve
without compensation, . . .' (Em-
phasis added throughout opinion.)
Section 1 of Article 2922-l provides as
follows:
"The following words and phrases
as used in this Act, unless a different
meaning Is plainly required by the con-
text, shall have the following meanings:
”
. . .
"(6) 'Member' shall mean any teach-
er or auxiliary employee included in the
membership of the System as provided in
Section 3 of this Act.
" . . .
"(12) 'Beneficiary' shall mean any
person in receipt of an annuity, a re-
tirement allowance, OP other benefit as
provided by this Act."
Section 3 of Article 2922-l designates
those persons Included In the membershl of the
Teacher Retirement System. Subsection P5)(c) of
Section 3 then provides as follows:
"Should any member In any period
of six (6) consecutive years after be-
coming a member be absent from service
more than five (5) consecutive years,
OP should he withdraw his accUmUlated
contributions, or should become a ben-
eficiary or upon his death, he shall
thereupo: cease to be a member; pro-
Mrs. B. B. Sapp, page 4 (v-1289)
vided, however, that any member who
has twenty-five (25) years of credit-
able servle in Texas may leave the
servlceprlor to attaining the age of
sixty (60) years and continue as a
member of the Teacher Retirement Sys-
tem by not withdrawing his accumulated
contributions, . . ."
The State Board of Trustees of the Teacher
Retirement System of Texas was created by the Legisla-
ture to administer the Retirement System established
under Article 2922-1, V.C.S., pursuant to Section 48a,
Article III, Constitution of Texas. It being a crea-
ture of statute, power lies Inherent In the Legislature
to provide by law for the selection and qualifications
of the membership constituting that Board. Att'y Gen.
op. v-219 (1947).
In Section 6 of Article 2922-1, provision
is made for a Board of six trustees. Subsection (2)
(d) Rrovides that three of the trustees shall.be 'mem-
bers of the Retirement System. B virtue of the pro-
visions of Section 3, subsection (5 T (c) and Section 1,
subsections (6) anti (12) of Article 2922-l it Is
clear that a "beneficiary" under that Act is not a
"member" of the Teacher Retirement System. 'Eenefi-
clary" is defined to include any person In receipt of
of a retirement allowance. Therefore any teacher-
member trustee on the Board of Trustees who makes ap-
plication for retirement benefits and Is awarded and
receives a retirement allowance ceases to be, upon
receipt thereof, a member of the Retirement System.
He then becomes a beneficiary of the System, and,
as such, has lost his former status as a member.
Clearly, membership in the Retirement Sys-
tem is a prescribed qualification as to ellgiblllty
for nomination and appointment for the trustee of-
fices covered by subsection (2)(d) of Section 5. Does
the statute also mean that membership in the System
is a necessary qualification to hold the offlce to
which one has been lawfully nominated and appointed?
The requirement in subsection (2)(d) that
nthree (3) of the trustees shall be members of the
Retirement System" is clear and unambiguous. It
states a positive qualification requirement. It
. .
Mrs. B. B. Sapp, page 5 (V-1289)
presaribes, in substance, that each of such trustees
shall be members of the Retirement System as a neces-
sary qualification for holding the office, as well as
a necessary qualification for their eligibillty to
nomination and appointment thereto. To conclude that
membership In the System Is necessary only to estab-
lish~eligibil.ityfor nomination and appointment to
the office Is to read Into the express qualification
requirement a restriction on Its application at
variance with the clear mandatory pronouncement.
We think the applicable rule is stated in
42 Am.Jur. 912, Public Officers, Sec. 41, as foll.ows:
"Eligibility to public office Is of a
continuing nature and must exist at the
commencement of the term and during the oc-
cupancy of the office. The fact that the
ca~ndicate may have been qualified at the
time 01 *rrselection Is not sufficient to
entitle him to hold the office, If at the
time of the commencement of the term or
during the continuance of the incumbency
he ceases to be qualified.n
For cases supporting this rule, see Annotation, 88
A.L.R. 812, 828, and State ex rel. Olson v. Langer,
65 N.D. 68, 256 N.W. 377 (1934).
But conceding, for discusslon~s sake only
that the law Is ambiguous in this respect, it ought
to be interpreted in the light of legislative pur-
pose or intent, where that can be ascertained. We
conceive that this purpose and policy is to eetab-
lish and guarantee representation of the members of
the Retirement System on the State Board of Trustees
of that System in the manner and to the extent there-
in provided. Such teacher-members representatives
are selected from the nominees of the members of the
Retirement System itself. The law so provides. They
are peculiarly familiar by reason of their actual
membership in the System with the needs and welfare
of the members of that System.
Incongruities arise if we conclude to the
contrary, i.e., that membership in the System is a
necessary qualification only for eligibllity for
nomination and appointment to the Board. If a per-
son lawfully appointed trustee of the Board is a
member of the Retirement System on the day of his
Mrs. B. B. Sapp, page 6 (V-1289)
nomination or of his appointment, but immediately
ceases to become a member of the System by reason
of his becoming a beneficiary, he could serve his
six years' term; and, if all three of such appointed
teacher-member trustees chould happen to cease being
members of the System during their respective terms
of office, they would at111 constitute the member
representation on the Board. Such contingencies are
opposed to the policy of the statutewhose purpose is
to require such three persons to be members of the
Retirement System not only when nominated and ap-
pointed to the Board but during their terms of of-
fice.
Accordingly, it is the opinion of this
office that a trustee lawfully appointed and ser-
ving on the State Board of Trustees of the Teacher
Retirement System under the provisions of Section
6, subsection (2)(d), Article 2922-1, V.C.S., is
not quallfed for membership on the Board when he
ceases to be a member of the Teacher Retirement
System and becomes a "beneficiary" and receives a
retirement allowance under that System.
SUMMARY
I
A member of the Board of Trustees
of the Teacher Retirement System is not
qualified for membership on the Board
when he ceases to be a member of the
Teacher Retirement System by becoming
a "beneficiary' and receiving a retire-
ment allowance under that S stem. Art.
2922-1, and 6,
(69Sec.
Sec. 1, y$T;y; .and (l;?),
Sec. 3, subset.
subset. (2)(d), V.C.S.
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE DANIEL
County Affairs Division Attorney General
Jesse P. Luton, Jr.
Revlewlng Assistant
Everett Hutchinson Chester E. Ollison
Executive Assistant Assistant
CEO:awo