The Honorable Allan Ritter Chair, Pensions and Investments Committee Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910
Re: Whether certain statutory provisions relating to revocation of retirement benefits and immunity from liability apply to a retired teacher employed on a temporary basis by a third party that provides contractual staff services to a school district (RQ-0584-JC)
Dear Representative Ritter:
Your predecessor as Chair of the Pensions and Investments Committee asked this office a series of questions related to the practice of contracting with commercial enterprises that employ retired teachers and supply them to the school districts on a temporary basis.1 As we understand the situation giving rise to this request, certain commercial enterprises enter into contracts with retired educators to secure their employment with school districts and enter into contracts with school districts to provide those districts with the services of those educators. As the contracts are structured, the retired educators are employees of the third-party commercial enterprise and provide services on a temporary basis to the school districts. Your predecessor asked whether, under such an arrangement, provisions for loss of retirement benefits, such as those found in Government Code sections
Government Code section
A person who has retired under the retirement system revokes that retirement if the person becomes employed in any position in a public school during the first month following that person's effective date of retirement, or during the first two months following an effective date of retirement established by reliance on section 824.002(d), and must return any retirement benefits received under the original retirement.
Tex. Gov't Code Ann. §
A similar penalty provision is to be found at section 824.601, which provides in pertinent part:
Except as provided by Section 824.602, a retiree is not entitled to service or disability retirement benefit payments, as applicable, for any month in which the retiree is employed in any position by a Texas public educational institution.
Id. § 824.601 (Vernon 1994) (emphasis added). As the emphasized language in these provisions makes clear, whether the revocation of benefits under them is triggered by the kind of employment at issue here depends upon whether, within the meaning of these provisions, the retired educator is "employed in any position" by the school district.
We note at the outset that we are not considering the application of the provisions to any particular individual. Determining the employment status of particular individuals would require the examination of factual matters of a sort we cannot undertake in the opinion process.2 We are therefore concerned solely with the meaning of "employed in any position" in the two statutes as a matter of law.
The question of who is an employee of an employer such as a school district covered by the Teachers Retirement System of Texas (the "TRS" or "retirement system"), moreover, is in the first instance a matter for TRS. Section
TRS's position on this question, as detailed in a letter brief to this office, is that "[i]f the facts support a finding that the third party is a private entity, TRS agrees that the employer is not a public school employer covered by TRS."3 In support of this view, the TRS brief notes that pursuant to section
On the other hand, a brief submitted on behalf of the Texas Federation of Teachers (the "TFT") argues that the retired educators may more properly be characterized as employees of the school district and that a court would look not solely at the assertion that the educator was an employee of the third-party contractor, but "at the actual relationship, with the most important factor being the right of control."4 TFT's brief argues that section
Attorney General Opinion
The law does not support TFT's position that as a matter of law the contracts at issue here were designed to evade requirements such as those in chapter 824 of the Government Code. TRS regards contracts such as those at issue here as contracts for the provision of temporary services by a third party, and therefore, as not triggering the penalty provisions about which your predecessor asked. In so doing, it is entitled to deference because the legislature has explicitly given TRS the authority to make determinations as to who is an employee whose employment by a school system will cause a loss of benefits. "The construction of a statute by an agency charged with its execution is entitled to serious consideration so long as the construction is reasonable and does not contradict the plain language of the statute." Simplex Elec. Corp. v. Holcomb,
The next question is whether a retired teacher who provides temporary educational services in a public school under the kind of contractual arrangement at issue here is "a professional employee of a school district" for the purposes of the limited grant of immunity from personal liability provided by section
(a) A professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee's position of employment and that involves the exercise of judgment or discretion on the part of the employee, except in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students.
. . . .
(c) In this section, "professional employee" includes:
(1) a superintendent, principal, teacher, supervisor, social worker, counselor, nurse, and teacher's aide; [and]
. . . .
(4) any other person whose employment requires certification and the exercise of discretion.
Tex. Educ. Code Ann. §
While teachers generally are professional employees under section
The final question is whether an entity providing the kind of services at issue here must be licensed under chapter 91 of the Labor Code, which concerns staff leasing services. See Tex. Lab. Code Ann. §§
91.001 -91.063 (Vernon 1996 Supp. 2003). Section 91.001(14) defines "[s]taff leasing services" as an arrangement by which employees of a license holder are assigned to work at a client company and in which employment responsibilities are in fact shared by the license holder and the client company, the employee's assignment is intended to be of a long-term or continuing nature, rather than temporary or seasonal in nature, and a majority of the work force at a client company worksite or a specialized group within that work force consists of assigned employees of the license holder.
Id. § 91.001(14) (Vernon Supp. 2003) (emphasis added). As this office does not find facts in the opinion process, we cannot determine whether any particular business entity of this type is engaged in providing staff leasing services.5 However, unless the employment arrangements were in fact of a long-term or continuing nature and the majority of a given work force either at a particular school or in the school district were assigned employees of the third-party contractor, chapter 91 of the Labor Code would not be implicated by this situation.
Very truly yours,
GREG ABBOTT Attorney General of Texas
BARRY R. McBEE First Assistant Attorney General
NANCY FULLER Deputy Attorney General — General Counsel
RICK GILPIN Deputy Chair, Opinion Committee
James E. Tourtelott Assistant Attorney General, Opinion Committee