The opinion
"P‘HEATTORNEY GENERAL
OFTEXAS
AUHTlN 11. TExas
PRICE DANIEL
ATTORNEYGENERAL
October 8, 1949
Hon. B. B. Sapp, Director Opinion X0. V-926.
and Executive Secretary
Teacher Retirement Re: Employment of a person
System of Texas who receives service
Austin, Texas retirement benefits Un--
der Art. 2922-1, V.C.S.,
by boards, agencies, or
departments covered by
the Teacher Retirement
Dear Mrs. Sapp: Law.
We quote from your recent letter:
"Section 5, Sub-section 1, of the Teacher
Retirement Law reads in part as follows:
11
8 Any member who has accepted
service ie&ement shall be ineligible and
disqualified to resume and/or continue em-
ployment in the public schools of Texas,
and also shall be ineligible, and disqual-
ified to be otherwise employed in the pub-
lic schools of this State; . . .'
'We have interpreted this to mean that af-
ter a person has accepted retirement bene-
fits, he cannot be employed in any capaci-
ty by boards of common school districts,
boards of independent school districts,
county school boards, State Board of Trus-
tees, State Board of Education and State
Department of Education, boards of regents
of colleges and universities,P and any oth-
er legally constituted board or agency of
an educational institution or organization
supported wholly or partly by the State.
"Are we correct in this interpretation?"
We are informed that you are not here concern-
ed with the employment of persons retired on August 31,
1942, and prior thereto, who are permitted under other
Hon. B. B. Sapp, page 2 (V-926)
provisions of Subsection 1 of Section 5 to resume em-
ployment in the teaching profession. Since Attorney
General Opinions numbered O-7155 and V-554 discuss in
detail such employments, we shall not consider that
matter.
Prior Attorney General Opinion No. o-5097,
dated February 15, 1943, which was rendered before the
above quoted provision of Subsection 1 of Section 5
was incorporated into the Teacher Retirement law, held
that a person retired for service might not be reem-
ployed as a teacher under the Act. This opinion said
further that it was clear that the Legislature intended
that a person retired for service shall not be reem-
ployed as a teacher. More recent Opinion No. V-554
dated August 6, 1948, points out that this legislative
intention was announced in clear and unequivocal lan-
guage by the insertion in the Teacher Retirement Law
of the provision you quote and otharsrelated thereto.
The term "teacher," as defined for purposes
of the Teacher Retirement Law, is much broader than the
term normally connotes. Subsection (3) of Section 1,
Article 2922-1, V.C.S., reads:
"'Teacher' shall mean a person employed
on a full-time, regular salary basis by boards
of common school districts, boards of indepen-
dent school districts, county school boards,
State Board of Trustees, State Board of Educa-
tion and State Department of Education, boards
of regents of colleges and universities, and
any other legally constituted board or agency
of an educational institution or organization
supported wholly or partly by the State. In
all cases of doubt, the State Board of Trus-
tees, hereinafter defined, shall determine
whether a person is a teacher as defined in
this Act. A teacher shall mean a person ren-
dering service to organized public education
in professional and business administration
and supervision and in instruction, in public
schools as defined in Subsection (2) of this
Section."
Persons included in this definition, save for
specified exceptions,are covered by the Teacher Retire-
ment System Law and are members of the retirement system
. .
Hon. B. B. SaPP, page 3 (v-926)
as a condition of their employment. sec. 3, subd. (2),
as amended.
The 51st Legislature in Senate Bill I?o.333,
made auxiliary employees eligible for membership in the
Teacher Retirement System and defined R8uxillarg employ-
ees" (Subset. (3a), Sec. 1, Art. 2922-l) as follows8
"'Auxiliary employee' shall mean a
person, other than a 'teacher' as herein-
above defined, employed on a full-time,
regular salary basis by a comaon district,
independent school district, county school
board, the Teacher Retirement System of
Texas, State Board of Education, State De-
partment of Education, boards of regents
of colleges and universities, and any oth-
er legally constituted board or agency of
an educational institution or organization
supported wholly or ,partlyby the State.
Provided, however, that no person who is
employed by the State Board of Control in
eleemosynary institutions under its con-
trol, shall be considered to be an 'auxil-
iary employee' within the contemplation of
this subsection. In all cases of doubt,
the State Board of Trustees shall deter-
mine whether a person is an aL+liary em-
ployee as defined by this Act.
Such persons, save for certain exceptions,
will be covered by the Teacher Retirement System Law
and become members of the system as a condition of
their e loyment. Sec. 3, Subd. (3) (a), (b) and (c),
Subd. (4
l-7 (a) and (b), Art. 2922-1, as amended.
Subsection 1 of Section 5, as quoted herein,
concerns any member who has accepted service retire-
ment, be he amed "teacher' member or a retired
"auxiliary employee" member. In substance it.provides
that any such member is ineligible and disqualified to
resume employment in the public schools and ineligible
and disqualified to be otherwise employed in the pub-
lic schools of Texas. This clearly maxim that such
retired member shall not resume or continue employment
in any capacity in the public schools of Texas, and
such retired member is disqualified for employment in
any capacity in the public schools of Texas. Since re-
tired members are thus made ineligible for employment
Hon. B. B. Sapp, page 4 (V-926)
in the public schools it follows that the bo'ards (des-
ignated in Subset. (3j and (3a) of Sec. 1) are preclud-
ed from employing any such members in any capacity.
The term "public school," as defined for pur-
poses of the Teacher Retirement Law, is much broader
than the term normally connotes. Subsection (2) of
Section 1 of Article 2922-1, V.C.S., reads:
"'Public School' shall mean any edu-
cational organization supported wholly or
separately by the State under the author-
ity and supervision of a legally constitut-
ed board or agency having authority and
responsibility for any function of public
education.'
By,virtue of this definition the State Board
of Education, the State Department of Education, State
Board~of Trustees of the Teachers Retirement System of
Texas, and the State Colleges and Universities are in-
cluded in "public schools of Texas" as provided in sub-
section (2) of Section 1, when considered along with
;;;;e;tiy; (3), (3a), and (5) of Section 1, Article
-9 * .S., as amended.
Therefore, in the light of the law and the
opinions above considered, it is our conclusion that a
person who has accepted service retirement under the
Teacher Retirement Law cannot lawfully be employed in
any capacity by boards of common school districts,
boards of independent school districts, county school
boards, State Board of Trustees (Teacher Retirement
System of Texas), State Board of Education and State
Department of Education, boards of regents of colleges
and universities or any other legally constituted board
or agency of an educational institution or organization
supported wholly or partly by the State.
Because of the plain provisions of the
Acts of the Legislature, a person who has
accepted service retirement under the Teach-
er Retirement Law cannot lawfully be employ-
ed in any capacity by boards of common
school districts, boards of independent
school districts, county school boards, State
Board of Trustees (Teacher Retirement System
. .
Hon. B. B. Sapp, page 5 (V-926)
of Texas), State Board of Education and State
Department of Education, boards of regents of
colleges and universities or any other legal-
ly constituted board or agency of an educa-
tional institution or organization supported
51st Leg.; A. G. Opinions O-5097, V-654.
Yours very truly,
ATTORNEY GENERAL OF TEXAS
Chester E. Ollison
CEO:mw:bh Assistant
APPROVED
2,/L--J-
G+
FIRST ASSISTANT
ATTORNEY GENERAL