Untitled Texas Attorney General Opinion ( 1976 )


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  • The Honorable Kenneth Ii.Ashworth       Opinion No. H-871
    Commissioner
    Coordinating Board                      Re: Whether teaching
    Texas College & University System       assistants are required
    Austin, Texas   78711                   to be members of the
    Teacher Retirement
    System.
    Dear Commissioner Ashworth:
    You have asked us:
    Under the Teacher Retirement System of
    the Texas Education Code aresteaching
    assistants that are classified as part-
    time employees of a university required
    to be members of the Teacher Retirement
    System?
    We begin by noting thatthe     Texas Education Code provides:
    Every person who may be employed as
    a teacher or auxiliary employee in any
    public school or other branch or unit
    of the public school system of this
    state shall become a member of the
    teacherretirement system as a condition
    of his employment. Section 3.03(b).
    (Emphasis added).
    "Teacher" is defined as:
    any person employed to render teaching
    service on a full-time, regular salary
    basis bythe governing board of any
    echool district created under the laws
    p. 3672
    .   -
    The Honorable Kenneth H. Ashworth - page 2 (H-871)
    of this state, by any county school
    board, by the State Board of Trustees of
    the Retirement System, by the State Board
    of Education, by the Central Education
    Agency, by the~board of regents of any
    college or university, or by any other
    legally constituted board or agency of any
    public school. Section 3.02(a) (3).
    (Emphasis added) q
    "Auxiliary employee" is defined as:
    a person other than a 'teacher' employed
    0" 5 full-time, regular ealary basis by
    the boards or asencies listed in Sub-
    section (a)(3) of this section. Section
    3.02(a) (5). (Emphasis added).
    The "full-time" requirement would seemingly exclude
    part-time teaching assistants, as well as bus drivers, cafeteria
    workers and similar employees from either of the above
    definitions, except that since 1961 the Board of Trustees of
    the System has applied an administrative regulation which
    provides:
    En$loyt    by pul+ic! stafe-supported
    e ucat onal instrtutlons In Texas for
    one-half or more of the standard wm
    load at afasoearable      to the rate
    forother persons employed in similar
    Trustees, Teacher Retirement System of
    Texas, section 334.03.01.001. (Emphasis
    added).
    It is urged by some that this administrative definition
    of "regular, full-time service" is at variance with the
    intended meaning of the statutory phrase, "full-time, regular
    salary basis," and should be disregarded. See Brown Ex ress,
    Inc. v. Railroad Commission, 415 s.w.2a 39479-x.
    --                                                   -!i&
    1967).
    p. 3673
    The Honorable Kenneth Ii.Ashworth - page 3   (H-871)
    The rule adopted by the Board of Trustees in ~1961
    replaced one in effect since 1937 which authorized member-
    ship for any person whose public school salary constituted
    50% or more of all current salary earned. The various
    educational institutions in the state have a substantial
    degree of autonomy in determining standard workloads for
    both teachers and other employees. The workload varies
    among the different types of work -- for example, that of ,a
    college teacher is generally measured by the number of
    "hours" taught, and that of a bus'driver by the route he
    drives. A cafeteria employee is paid according to the
    number of clock hours worked --which will often be lesb than
    the hours required for a school office secretary.
    The Texas Education Code sections dealing with the
    Teacher Retirement System were adopted in 1969, after the
    Board's definition had been implemented for a number of
    years and after many persons had become members of the
    System pursuant to its terms. Section 3.03(a) of the Code
    specifies that "All persons who on the effective date of
    this code were members of the Teacher Retirement System of
    Texas shall continue as members subject to the provisions of
    this chapter. . . -" Section 3.02(b) of the Code provides
    that "[iln case of doubt the State Board of Trustees of the
    retirement system shall determine whether a person is a
    'teacher' or 'auxiliary employee' within the contemplation
    of [Chapter 31." Section 3.59(i) of the Code states:
    "Subject to the provisions in this chapter, the State Board
    of Trustees shall, from time to time, establish rules and
    regulations for membership eligibility. D s *"
    We cannot say that the definition of "full-time,
    regular salary basis" which the Board of Trustees has admin-
    istratively supplied and followed for many years in the
    absence of legislative objection is so unreasonable and
    arbitrary that Texas courts would disregard it. During the
    past fifteen years, the Legislature has declined to alter
    the rule so that it would exclude teaching assistants and
    other employees who work substantially less than 40 hours
    per week. In that period of time, persons have accumulated
    credit in the System and in some cases have received benefits
    attributable to service as teaching assistants, cafeteria
    workers, secretaries, etc. Eight years after the rule became
    effective, the Legislature specifically indicated that persons
    who were presently members of the Teacher Retirement System
    p. 3674
    The Honorable Kenneth H. Ashworth - page 4 (H-871)
    would continue their membership notwithstanding codification
    of the retirement statutes. While we would not have constructed
    the rule in this manner, we do not believe we can do in the
    opinion process what the Legislature a@Teacher   Retirement
    system have declined to do. This determination is in
    keeping with the rule that such laws should be liberally
    interpreted to provide security for members and to encourage
    qualified persons to become and remain teachers in public
    education. See w0?a8  v. R;illy, 218 S.W.,Zd437 (Tex. Sup.
    1949); Teacher Retirement ystem v. Duckworth, 260 S.W.ZH
    632 (Tex. Civ. App. -- Fort WorthT953), afFcl 
    264 S.W.2d 98
    (Tex. Sup. 1954).
    SUM   MA    R Y
    Teaching assistants at public universities
    are required to be members of the Teacher
    Retirement System of Texas if they are
    employed on a "full-time, regular salary
    basis" as that term has been defined by the
    Board of Trustees of the Teacher Retirement
    System of Texas.
    Very truly yours,
    Attorney General of Texas
    APPROVED:
    DAVID M. KENDALL, First Assistant
    Opinion Committee
    jwb
    p. 3675
    

Document Info

Docket Number: H-871

Judges: John Hill

Filed Date: 7/2/1976

Precedential Status: Precedential

Modified Date: 2/18/2017