Untitled Texas Attorney General Opinion ( 1943 )

~F,A~ORNEY GENERAL
0F TEXAS
Mrs. B. B. Sapp, Director and Executive Director
Teacher Retirement System of Texas
Austin, Texas
Dear Mrs. Sapp: Opinion No. O-5097
Re: Whether retired member may re-
turn to teaching profession.
We have received your letter of February 9, 1943,
which we quote in part as follows:
"In accordance with Section 5, Subsection
7 of the Teacher Retirement Law of Texas, should
a member elect to receive his membership annuity
fn an annuity payable throughout life, may said
member legally return to the teaching profession?
"If so, prescribe procedure for the Executive
Secretary of the Teacher Retirement System of Texas
to follow with referance to said cases."
In effect, you ask whether a member retired for
years of service may be employed as a teacher under the terms
of the Act.
In the outset, let us say that we believe that the
purpose of the citizens of Texas in voting Section 48a, Arti-
cle III, Constitution of Texas, which authorized the estab-
lishment of the Teacher Retirement System, and of the Legis-
lature in passing the Teacher Retirement Act (Article 2922-1,
Vernon's Annotated Civil Statutes), was two-fold: first, to
reward and protect those members of an honored profession who
have given years of service toward the instruction of Texas
youth; second, to insure that our public educational system
will be maintained on the highest level by relieving from
duty those members of the profession who because of age and
infirmity can no longer adequately render the vigorous ser-
vices required of them by such educational system.
We will now proceed to construe the Act with these
purposes in mind.
Section 3 of the Retirement Act provides that all
persons who were teachers as of the date the Retirement Sgs-
ternwas established became members thereof as a condition of
Mrs. B. B. Sapp, page 2 O-5097
their employment unless such teacher within a period of 90
days after September 1, 1937, filed with the State Board of
Trustees of the Retirement System a notice of his election
not to be a member. Said section also provides that begin-
ning September 1, 1938, and thereafter, any teacher teaching
for the first time in Texas shall become a member of the Re-
tirement System as a condition of his emnlosment. In other
words, under such provisions, except for those teachers who
filed a notice as above described, membership in the Retire-
ment System is a condition of his employment as a teacher.
It is settled that the State of Texas may prescribe the w-
lifications of teachers and may name the conditions under
which the privilege of teaching may be exercised. We quote
the following from the case of Marrs v. Matthews, 270 S. W.*
586 (W. E. ref.):
"The public free school system in this State
is largely the creature of the statute. While the
Constitution directs its establishment, and makes
provision for its support and maintenance, the
organic details of the system are left mainly to
the Legislature. To that body is committed the
power to provide where public schools shall be
located, how they shall be controlled and managed,
the selection of subjects that shall be taught,
and to fix the qualifications of those who may teach.
While any citizen may have the inherent right to
teach a private school for the instruction of the
young, no one may claim an inherent right to teach
in public free schools., Since the
-.the ,. .- State -sup-
pLies tne revenue to support sucn 3cnooLs ana pay
'bhesalaries of teachers, the State may iustls claim
the right to orescribe the qualifications of those who
teach. and name the conditions under which the pri-
vilege of teaching may be exercised.
" A certificate to teach in the public schools
is merely a license granted by the State, and is
revocable by the State at its pleasure. Baldacchi
v. Goodlett (T:ex.Civ. App.) 145 S.W. 325; Stone
V. Fritts 169 Ind. 361, 82 N.E. 792, 15 L. R. A.
(N.S.) 1149, 14 Ann. Cas. 295; 24 R.C.L. 613. It
is not a contract protected by the due process pro-
visions of either the State or the Federal Consti-
tution * * * *' (Emphasis ours)
This department held in a letter opinion, dated
September 22, 1937, to Honorable Mortimer Brown, Executive
Secretary of the Teacher Retirement System, that once a
Mrs. B. B. Sapp, page 3 O-5097
teacher becomes a member of the Retirement System, he cannot
withdraw from membership in such System except to cease belng
a teacher, to dle, to be retired with a disabilitp benefit,
or to be retired on account of age with such annuity or other
benefit as is selected by such teacher. These conclusions
were affirmed by our Opinion No. o-1530.
An examination of the Retirement Act fails to dis-
close any provision authorizing, or even mentioning the re-
entering of the teaching profession by a member retired for
service. On the other hand, there are such provisions with
respect to beneficiaries under 60 years of age who were
retired on account of disability, and when they are so re-
.stored,their disabilit~y
-,_ allowance is stopped. Subsection
5 of Section 5, Article 2922-l. The restoration to active
service is limited to disability beneficiaries under 60
Tears of age. Subsection 4 of Section 5 provides that
Upon retirement for disability a member shall receive a
service retirement allowance if he has attained the age of
sixty (60) years; * l *." Otherwise he receives a disabil-
ity retirement allowance. Where a person under 60 is re-
tired on a disability allowance, such allowance is convert-
ed into a service allowance when he reaches 60 years of age.
Certainly, the limiting of restoration to active service to
disability beneficiaries under 60 years of age manifests the
legislative intent that retired members over 60 years of age
cannot be so restored. No member can be retired for service
until he has attained the age of 60 years. It is clear,
therefore, that a member retired for service may not resume
active service.
As we have heretofore mentioned, membership in the
Retirement System is a condition of a teacher's employment.
If such a retired teacher were allowed to resume teaching,
there would be the incongruous situation of one person's re-
ceiving both a salary as an active teacher and also retire-
ment benefits as a retired teacher. This obviously was not
the intent of either the people or the Legislature of Texas.
The word retire is clear in meaning. It means to withdraw.
A definition of the word appearing in Webster's New Interna-
tlonal Dictionary (Unabridged, 2nd Ed.) is: "TO designate
as no longer qualified for active service; to place on the
retired list * * *.'
It Is our opinlon that the fact that in the Retire-
ment Act there are no provisions authorizing members retired
for service to leave their retirement and re-enter the teach-
ing profession, whereas there are such provisions with respect
to disability beneficiaries, is as effective as a positive
provision in the Act expressly forbldding the same. This,
the Legislature has the power to do; this, in our opinion, it
^
Mrs. B. B. Sapp, page 4 O-5097
has done. You are advised, therefore, that your first ques-
tion is answered in the negative.
Our view is strengthened by the following provision
of Subsection 4, Section 4 of Article 2922-l:
"When membership ceases, such prior service
shall become void. Should the employee again be-
come a member, such a person shall enter the Sys-
tem as a member not entitled to prior service
credit except,as provided in Section 5, zubzec-
tion (5), paragraph (b) of this Act."
Section 5, Subsection (5), paragraph (b) deals with
a person retired on account of dizability who, is restored to
active service and provides that zueh a member may be oredited
with the prior service certificate he had at the time of his
disability retirement. Under Subsection 4 of Section 4 any
person-who again b~ecomesa member, except a person who was
retired on account of dizab~ility,enters az a member not en-
titled to prior service. It follows,.therefore, that if we
should hold that a member retired because of service may again
become a member, he would become a member not entitled to any
prior service. He would forfeit all his prior service credit.
Therefore, before any such member would again be entitled to
service retirement benefits, he would have to teach until he
had accumulated 20 years of creditable service. (Section 5,
Subsection 1, Article 2922-l). But as we have said before,
it izour opinion that a person retired for service may not
be re-employed as a teacher under the Act.
Our view is further strengthened by~the fact that
no provision is made for the transfer of funds upon a return
to active service by a member retired for service. Subsec-
tion 3 of SEction 8, relating to the Membership Annuity Re-
serve Fund, provides in part as follows:'
'* * l * This Fund shall be made up of trans-
fers as follows:
"(a) At the time of service or dizability re-
tirement the accumulated contributions of a retiring
teacher shall be transferred from the Teach:erSaving
Fund to the Membership Annuity Reserve Fund as re-
serves for the membership annuity purchased by his
contributions.
"(b) An amount equal to the accumulated con-
tributions of each retiring teacher shall be tranz-
ferred, upon service or disability retirement, from
the State Membership Accumulation Fund as reserves
Mrs. B.B. Sapp, page 5 O-5097
for an additional membership annuity equal to the member-
ship annuity purchased by the teacher.
"Transfers and payments from the Membership
Annuity Reserve Fund shall be made as provided
in Section 5, Subsection (5) Paragraph (b) of
this Act, upon the death,.restoration to active
service or removal from the dIsabilitg list of
a beneficiary retired on account of disability."
You will notice that provision IKmaae for transfers
and payments upon restoration of a beneficiary retired for
disability to active service. There Is no similar provision
with respect to members retired for service.
We think it clear and manifest that the Legislature
intended that a person retired for service shall not be re-
employed as a teacher. Our answer to your first question
renders unnecessary an answer to your second question.
Very truly yours
ATTORNEYGENERAL OF TEXAS
By s/George W. Sparks
George W. Sparks
Assistant
GWB/s/wc
APPROVED FEB 15, 1943
s/Gerald C. Mann
ATTORNEYGENERAL OF TEXAS
Approved OplnIon Commlttee By s/BWB Chairman