Untitled Texas Attorney General Opinion ( 1974 )

THEATTORNEYGENERAL
OF TEXAS
AUSTIN. T-s 78711
July 16, 1974
The Honorable Frank M. Jackson Opinion No. H- 348
Executive Secretary
Teacher Retirement System of Texas Re: Circumstances in which a
314 W. 11th St. 3d Floor teacher who previously has
Austin, Texas 78701 forfeited credits accumulated
m&r Teacher Retirement System
may later reinstate them.
Dear Mr. Jackson:
On behalf of the Teacher Retirement System of Texas, you have
asked two questions concerning the construction of Art. 3. 25 (b) of the
Education Code, V. T. C. S. :
1. May a person reinstate forfeited credit in the
Teacher Retirement System by depositing the
amounts specified in Section 3. 25 (b) of the
Texas Education Code if his only credit for
subsequent service meeting the statutory re-
quirement of “five subsequent consecutive
creditable years or seven subsequent creditable
years within any ten-year period”has also been
forfeited?
2. If such reinstatement is permitted, would the fact
that the member’s deposits for that subsequent
forfeited service (a) were. withdrawn or (b) es-
cheated to the state under the provisions of Section
3.52 (d) of the Texas Education Code prevent the
applicant’s reliance upon it to satisfy the require-
ments of Section 3.25 (b)?
p. 1620
The Honorable Frank M. Jackson page 2
These questions arise from the following situation. A presently
employed teacher rendered creditable service for six consecutive years
beginning in 1943, but termi.nated her membership by withdrawing her
deposits while absent from service. As presently provided by Art. 3.04(d),
Education Code, V. T. C. S., her termination of membership caused a
forfeiture of accumulated credits. She,, returned to teaching in 1952 and
rendered eight consecutive years of creditable service; however, she
forfeited her credits for this period because her membership was termi-
nated due to absence from service. Her deposits for this period were
never withdrawn from the System. In 1972 she again returned to service
in the public schools of Texas, and is presently attempting to reinstate
the forfeited credits accumulated during her first term of employment
(1943 -1949) on the basis of five consecutive years of subsequent service
during her second term of employment (1952-1960).
Artic,le 3. 25(b), Education Code, V. T. C. S. provides that:
Any person who terminates or has ter-
minated membership in the retirement sys-
tem by withdrawal of deposits or by absence
from service shall have the privilege of
reinstating such terminated membership by
rendering service for five subsequent con-
secutive creditable years and depositing the
amount withdrawn plus membership fees for
t,he years during which membership was ter-
minated plus a reinstatement fee of two and
one-half percent per annum from the date of
withdrawal to date of redeposit. The rein-
statement fee shall be credited to the state
contribution account.
The statute does not expressly require that in order to reinstate
forfeited cred’_ts on the basis of subsequent service the credits for that
subsequent service must be unforfeited, and we have found no case dealing
with this precise issue.
p. 1621
The Honorable Frank l$. Jackson page 3
The privilege of reinstating previously terminated membership
and the consequent reinstatement of credits for the years of such member-
ship is granted to “any person, ” Art. 3. 25 (b), while other provisions of
the Teacher Retirement System grant rights and privileges to “members, ”
e.g., A,rts. 3. 24, 3. 26, 3. 31, Education Code, V. T. C. S. This disparity
i.n language indicates that the privilege of reinstatement may be exercised
by one who is not presently a member, such as one who has forfeited
membership under Art. 3.04.
Art. 3. 25 (b) also fails to provide a time limit following the rendering
of the required subsequent service during which the privilege is to be exer-
cised. Under the Judiciary Retirement Act, Art. 6228b, V. T. C. S. , the
lack of a specified time limit within which application for a refund must be
made has been construed to allow an unlimited delay prior to such applica-
tion. Attorney General Opinion S-120 (1954). Concerning this same
Teacher Retirement System, this office has reflected conditions promul-
gated by the Board of Trustees, which were not expressed in the statute
which allows purchase of out of state credits, Art. 3. 26, Education Code,
V. T. C. S. Attorney General Opinion M-194 (1968). In that opinion it was
stated that “[t]he Board has no authority to add requirements not set out
in the statutes.,” _~
Generally, the rule of construction for statutes conferring benefits
upon public employees is: I’[A ] n act that is susceptible of more than one
construction will be so interpreted as to secure the benefits intended. . . ”
53 Tex. Jur. 2d 224, 225, Statutes 9157 (1964).
Such pro-beneficiary construction is compelled by the state’s
public policy as expressed by the courts. The purpose of the Teacher
Retirement System is:
. . . to provide security and create an incentive to
encourage qualified persons to become and remain
teachers in the Public Schools of Texas . . . . the
Act should be liberally construed in order to effec-
tuate the whole purpose of the plan.
p. 1622
The Honorable Frank M. Jackson page 4
Woods v. Reilly, 218 S.W. 2d 437, 442 (Tex. 1949).
This polic,y has ‘been reiterated and applied to strike down a Board of
Trustees construction which diminished a teacher’s retirement benefits
in Teacher Retirement System et al v. Duckworth, 260 S.W. 2d 632
(Tex. Civ. App. - Fort Worth 1953) opinion adopted, 264 S.W. 2d 98
(Tex. 1954).
In light of both the statutory language and the strong public policy
involved, it is our opinion that under Art. 3. 25 (b) a teacher may elect
to reinstate previously forfeited credits at any time after he has rendered
the required subsequent service, notwithstanding the forfeiture of credit
for that subsequent service.
Your second question deals with the effect of the withdrawal of the
deposits for the subsequent service or their escheat to the state.
Under Art. 3.04, the withdrawal of deposits is a manner of forfeiture
parallel to absence from service. Since it is our opinion that in order to
reinstat~e membership and credits Art. 3. 25 (b) requires only subsequent
service for the period provided, neither the manner in which credit for
the subsequent service is forfeited, nor whether the deposits from this
subsequent service have e:scheated to the state, is of consequence.
Otherwise the state’s public policy would be contravened by the imposition
of conditions upon teachers’ rights under the Teacher Retirement System
when such conditions are unexpressed by the statutes.
SUMMARY
Statutes conferring retirement benefits on public
employees are to be liberally construed so as to secure
the benefits intended. Consequently, forfeited member-
ship and credits in the Teacher Retirement System of
Texas may be reinstated at any time following the
rendering of the required subsequent service, Art. 3. 25(b),
p. 1623
. r
The Honorable Frank M. Jackson page 5
regardless of the state of the membership and credits
which were accumulated during this subsequent service.
Very truly yours,
Attorney General of Texas
0&9/p
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1624