Judges: JOHN L. HILL, Attorney General of Texas
Filed Date: 12/11/1978
Status: Precedential
Modified Date: 7/6/2016
President Philip G. Hoffman University of Houston Houston, Texas 77004
Re: Authority of the University to promulgate a regulation defining the term "full-time basis" in section
Dear Dr. Hoffman:
You inquire about the authority of the University of Houston Board of Regents to promulgate a rule defining "full-time basis" as it appears in a provision relating to the Optional Retirement Program. Section
. . . a person who is employed by an institution of higher education on a full-time basis as a member of the faculty or staff and whose duties include teaching, research, administration, . . . or the performance of professional services. . . .
Educ. Code §
In Attorney General Opinion H-871 (1976) we considered the TRS rule and declined to hold it invalid. We found numerous factors supporting its validity which are not present in the case of your proposed rule. The TRS definition was an administrative construction of long standing, and employees had accumulated credit and received benefits under it. When the legislature placed the TRS provisions in the Education Code in 1969, it expressly provided that present members of TRS would continue their membership. Educ. Code § 3.03(a). In addition, TRS served employees in diverse job classifications with various ways of measuring workload. We concluded that the courts would not disregard the long-standing administrative construction, particularly in view of the legislature's acquiescence in it.
However, we stated that we would not have construed the statute in this manner. We noted that the courts will disregard an administrative construction which is contrary to the plain meaning of a statute. See Brown Express, Inc. v. Railroad Commission,
The Code Construction Act provides that "[w]ords and phrases shall be . . . construed according to . . . common usage." V.T.C.S. art. 5429b+2, § 2.01. See also National Life Co. v. Stegall,
employed for or working the amount of time considered customary or standard.
Webster's Third International Dictionary at 919. In contrast, "part time" is defined as follows:
employed for or working less than the amount of time considered customary or standard.
Id. at 1648. In our opinion, a definition of "full time basis" that includes employment at half time or less than full time is contrary to the plain meaning of the statutory language. In the absence of strong countervailing factors like those outlined in Attorney General Opinion H-871, see also V.T.C.S. article 5429b-2, section 3.03, we do not believe your administrative definition would be upheld by the courts. In our opinion, you may not adopt the proposed definition of "full-time basis."
Very truly yours,
John L. Hill Attorney General of Texas
APPROVED:
David M. Kendall First Assistant
C. Robert Heath Chairman Opinion Committee