Untitled Texas Attorney General Opinion ( 1971 )

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
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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.
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,
.
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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