*1 December 29, 1971 Hon. Frank >I. Jackson Opinion No. M-1027 Executive Secretary Re: Questions relating to the

Teacher Retirement System of Texas Teacher Retirement System and the Optional Lowich Building Austin, Texas 78701

Dear %r. Jackson:

Your request for an opinion on the above subject matter reads in part as follows:

“A ‘faculty member’ in an institution of higher in Texas elected to go to the Optional Program as provided by Title 3, Chapter Sl, Subchapter G of the Texas Edu- ~.

cation Code (S.B. 292, 60th Legislature, 1967).

He later changed to a position, still in an in- in Texas, which is not classified as ‘faculty member’ and became a member of the Teacher Retirement System as pro- vided in Attorney General’s Opinion No. bl-647.

This same employee has again been changed to a position which can be classified as ‘faculty mem- Based on this information we request your ber.’ opinion on the questions.

II 1. Is the employee of described above required to re- main in the Teacher Retirement System?

II 2. If your answer to Question 1 is in the may he again return to the Optional negative, Program? “3. If the answer to Question 2 is in the is he required to return to the affirmative, Program? *2 “The second situation involves a person who was employed in an institution of higher education in Texas as a ‘faculty member’ with an opportunity made available to him to become a member of the This faculty member Program. did not elect to become a member of the Optional Program until the time permitting him He there- to make such an election had expired.

fore continued to be a member of the Teacher Re- This ‘faculty member’ has now tirement moved to another institution of higher education in Texas. We respectfully request your opinion on question.

1, 4. Is a ‘faculty member’ whose electing to become a member of the Optional Re- tirement Program has expired again eligible to to become a member of the Optional Retire- ment Program as a new employee in another insti- tution of higher education in Texas?

“The third situation involves the opposite A ‘faculty member’ in an the one outlined above. institution of higher education in Texas elected to become a member of Program.

He has now moved to another in Texas still as a ‘faculty member.’

The question is.

I, 5. Is a ‘faculty member’ who has elected become a member of to elect to become a member of the Teacher System as a new employee of another in- in Texas?”

In Attorney General’s Opinion M-647 (1970) the Summary reads :

“Article 2922-1.03, requires all persons as teachers or auxiliary em- ployees of an institution

to be members of Teacher Retirement System of Texas unless they are members of Optional *3 . -

Hon. Frank Fl. Jackson, “Article 2922-li. provides an Optional Retirement Program for ‘faculty members’ only as defined in said statute.

“Former ‘faculty members’ who no longer meet of ‘faculty member’ are required to definition rejoin Teacher Retirement System as provided under Article 2922-1.03, 2922-1.04 and 2922-2.05 V.C.S. but said former faculty members are not eligible to receive credit with the Teacher Re- tirement System of Texas for any service during which they were members of the Optional Re- tirement Program.”

The controlling statute is Section 5 of .Irticle 2922-li, Vernon’s Civil Statutes, which reads:

“A faculty member (including one SO on the effective date of this Act) \<ho becomes eligibles to pa.rticipate in the Optional Retirement Program and \iho is a member of the Retirement Sys- tem is hereby extended the option of continuing his membership in the Retirement System or participating in the Optional Retirement Program and retaining a limited membership in the Retirement System as hereinafter set forth. A faculty member who is eligible to participate in the Optional Retirement Program on the date the Optional Program becomes available at the at which such faculty member is employed,

no later than the 1st day of August of the calendar year the date on which Program becomes available at the insti-

tution at which such faculty member is employed, shall to participate or not to participate in the Optional Pro- gram. A faculty member who becomes eligible participate in the Optional

subsequent to the date on which Program becomes available at the in- at which such

faculty member is employed shall make such election within ninety (90) days follouing date on which faculty member becomes to participate

A faculty member exercising the option to partici- pate in the Optional Retirement Program as afore- said shall not thereafter be eligible for member- ship in the Retirement System except as a limited member pursuant to Section 7 hereof unless member ceases to be employed by an institution of higher and becomes by the Texas Public School System other than in an in- A faculty member education. not exercising the option to participate in the Program as aforesaid shall be deemed to have chosen to continue membership in the Retirement System in lieu of exercising such option to participate in the Optional Retire- ment Program.”

It is our opinion that the provisions of Section 5, above quoted, do not authorize a series of elections between the retirement systems, but rather authorize persons exercise such option only once, and during the prescribed period stated therein.

Your fir~st’three questions are accordingly answered by sentences. An employee of an institution described in your first situation is required to remain in the Teacher Retirement Such employee may not again to participate

In answer to your fourth question you are advised that a faculty member whose electing to become a member of Program has expired may not at a sub- sequent date elect to become a member of

Program as a new employee in another institution edu- cation in Texas.

Likewise, in answer to your fifth question! a faculty member who has elected to become a member of the Optional Retire- ment Program is not eligible to become a member of the Teacher System as a new employee of another of in Texas.

SUMMARY Section S of Article 2922-li, au- thorizes a faculty member of an institution

-501 l- *5 . -. . ..* ’

. page S to make only one election con-

cerning whether faculty member desires participate

or chooses to continue membership in the Teacher Prepared by John Reeves

Assistant Attorney General

APPROVED:

OPINION COMblITTEE

Kerns Taylor, Chairman

W. E. Allen, Co-Chairman

Pat Bailey

John Banks

Harriet Burke

James Quick

SAM MCDANIEL

Staff Legal Assistant

ALFRED WALKER

Executive Assistant

NOLA WHITE

First Assistant