The opinion
Honorable Uortimer Brown
hecutive Seooe~
F,;r zement Sydem OS Texaa
.
Dear Sir1 Opinion lo. O-3399
%r Uhether oP not persona engaged by
the Federal Govemment in the emergent;
relief lducatlonel program are ewlble
to participate ln the teacher retlre-
ment eyetern OS Texeu.
We received your letter dated April 9, 1941, which is eelf-
explanatory, end reedl), in part, aa follo~sr
“1, Are persona who are engaged In the emer-
gency relief educational program *here tesohere un-
able to get employment ln regular sohoole were employ-
ed under the relief program at the time the teacher
retirement eyrtem wan voted ln Texae, ellglble for
pa;a:;:patlon ln the teacher retirement ryetem of
“2. Are persona non engaged or heretofore en-
gaged ln oduaatlonal work for the Federal Govermtlent
whereln the full malery Is paid to said employee by
the Bederal Government, but the work of the employee
is perrormed ln public school buildings and *here
materiels of the public schools are used, lllglble
for participation in the teacher retirement system
of Texae?
“3. If the answers to Question No. 1 and No.
2 are ln the efftiatlve, will you advlae If it
should : be the duty of the lndlvlduel to now pay 5
per cent of his salary 83 earned from the Federal Gov-
ernment or is he ellglble to retirement without thle
payment?
“This department has been operating for three
and one-half years with the belief that the prQvlslon
In the Constitution of the State, Article 3, Section 488
whlah reads a8 follows~
“I In addition t> the powers given to the Leg-
lclature, under &ctlon 38 of Article 3, It shall hr\ve
the right to levy f::::es to provide a Xetlrcment -Fund
for persons employed i.n public schools, colleges and
unlveraitles supported wholly or partly by the State;
- . - . . _ t’
Honorable Wgrtlmer &own, P8ge 2 o-3399
“and the deflnltlone OS the tenw @teacher’
and ‘public rohooll u found In Seotlm 1, Subeec-
tlon 2 4nd 3 of the Tewber Retirement Aot which
read u f011owr1
“~Publlc Sahool’ ehall meen any eduoatlonel
organlwtlon mapported wholly or partly by the State
under the authority and mpervlrion of a logally
oonetituted board ob rgenoy having authority lnd re-
~ponaibllity for any funetlon of public educratlon.
“~Toaaher~ &all mean a pereon employed on
a iull-time regular eelmy barfe by boards of eom-
non lrchool dlstclotr boards of lndependmt sahool
dirtclotr, county school boardr, Retirement Board
of Truetees, State Board of Education and State De-
partment of !Zducatlon, boards of regents of colleges
and univerrities, and any other legally constituted
board or agency of an lduoatlonal institution or
orsuliwtion ruppor\ted wholly or partly by the State.
In all eaaea o? doubt, the Retirement Board of
Txwtees, hereinafter defined, shall determine
g;ther & perron 18 a tesaher 06 defined in thle
A teacher shall mean a permon render servloe
to &ganlwd public eduaatlon In proferslone9 and
buelnem admlnibtratlon and supervlslon and In instruc-
tion In public echoola as defined in subsection (2)
of tjtls section.
“do not permit a pereon employed in eduoa-
tional work OS the Bederal Qovertxnent and receiving
all of hlr salary directly from the Federal Qovern-
ment to be considered 86 ellglble for participation
In the Teacher Retirement Program of Texar. It le
my underrtandlng that employees of the Bnergency
Education Program ere empoyeerr of the Federal Qovern-
ment and are relmbur6ed entlrely and directly by
the Federal Qover,nment, It Is alao my understanding
that Bone of these emergency education employee@ are
granted permlselon to hold their c;iaauea In churches
and various other >U.ces. . . , .
Subsection 5 of Section 1 of the Teacher Retirement Act,
codified ln Vernon’s Annotated Civil Statutes as Article 2322-1, reado a~
follownl
“(5) ‘&ployer’ shall
mean the State ol Texas
and any of ltr deeigneted or agencler, with
agents
reeponslblllty and authority for public educritlon, such
as the commonand Independent school boards, the boards
of regents of state colleges and unlversitlen, the county
school boarda, or any other agency of and within the
Stoto by which a ijerson may be employed f3r service In
public education.
Ponoqabla Mortlmor &own, -0 3 s-3399
8ubaaotlon 1 of 8eotion 3 o? aald Aat made 88
followa:
”(1) All persona who ara toaohara on tha date
aa of which the Ratireiaant System la latabllahed ahall
bacomo mambera u of that 88t8 a8 a oondltlon of their
mloyment unleaa within a period of ninety (90) day8
after September 1, 1937, any much teacher till tll8
with the State Board of Truetee on a form preaorlbed
by auoh Board, a notloo of hi8 election not to be
oovered In the membership of the System and a duly ax-
eouted waiver of all preaant and proapaotlva beaaflta
whloh would othomlac Inure to him on aooount of hla
participation in tha Retireinen: System.”
As we underatand the recta ooncernlng the persons mentioned
In your letter, they are employed directly by the Federal Government.
We also underetand thalr eelary la paid directly b; the Federal Govern-
ment and their services are controlled by a Federal Agency: and not by
a State Agenoy. For thee@ x%aaona we do not believe that the peraona
mentioned In your Slrst quartion are teachers 88 that term la defined
ln the Act, 8upr8, and they are not therefore, el&lble to pertlclpate
in the teacher retirement ayeten. &or further re88on, we note that Sub-
aectlon 1 of Section 3 of the Aat, aupra, provides that pereona who are
teachers at the time of the eatabllshment of the retirement system shall
become subject thereto ea acondition of their employment unless they
file a rejection within a period of time. We do not believe the Legls-
lature intended to so condition the employnrnt of a person who la not
ln the employment of any State Agency, but, on the contrary, la In the
employment of the Federal Government.
In answer to your eecond question, we arc of the opinion
that the persona mentioned are not teachers as thet term is uaed in the
Act notwithstanding they may pertozu their wmk in a public school
building. Thla Is for the reason that they are not employed by any
State Educational Agency~but are employed directly and exclusively k
the Federal Goverrrment.
Since we answer your first two questions in the negative,
WE do not amwcr your third queetion.
Yours very truly
By s/Lee Shoptaw
Lee Shoptaw
LSt dbrwc Assistant
APPRGVRD APRIL 25, 1941
a/ Grwer Sellers
XRST ASSISTANT
ATTOFL’iZY GlZ.WiML
APPROVZD
Cpinlon Comlittee 3y s/NE Cihakmin