Untitled Texas Attorney General Opinion ( 1978 )

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The Attorney General of Texas
March 30, 1978
JOHN L. HILL
Attorney General
Honorable John Wilson Opinion No. H- 114 7
Chairman, Committee on
Health & Welfare Re: Forfeiture of teacher
House of Representatives retirement benefits by county
Austin, Texas 70769 judge acting as ex officio super-
intendent.
Dear Representative Wilson:
You ask whether a county judge serving as ex officio county school
superintendent pursuant to section 17.47 of the Education Code may at the
same time receive teacher retirement benefits. You inform us that the
county judge of Fayette County is otherwise entitled to benefits from the
Teacher Retirement System and ask whether section 3.37 of the Education
Code requires him to forfeit these benefits. Section 3.37(d) provides in part:
A person receiving a service retirement benefit
from the retirement system who is employed in any
position in the public schools of Texas except as
provided in this section, shall forfeit all retirement
benefits for any month in which such employment
occurs.
The exception permits a limited amount of substitute teaching by a retired
person. The county judge must forfeit his benefits if he “is employed in any
position in the public schools” by reason of his ex officio service as county
school superinteddent.
‘Public school” is defined by section 3.02(a)(2) of the Education Code as
any educational institution or organization in this state
which under the laws of Texas is entitled to be
supported wholly or partly by state, county, school
district, or other municipal corporation funds.
This broad definition has been held to include Regional Education Media
Centers established pursuant to section Il.32 of the Education Code to provide
p. 4658
Honorable John Wilson - Page 2 (H-1147)
educational services for school districts. See Attorney General Opinion C-749
(1966). In our opinion, this definition of’“pub~schoo1” is broad enough to include
the county school administration, which provides a variety of services to school
districts and has authority to “perform any other act consistent with law for the
promotion of education in the county.” Educ. Code S 17.31. The county school
administration of course receives the requisite public funding. See Educ. Code SS
17.09, 17.51, 17.52, 18.30. We believe the county judge who is periorming the duties
of the county school superintendent is employed in a position in a public school so
that section 3.37(d) requires him to forfeit his retirement benefits. To hold
otherwise would reverse many years of consistent administrative interpretation and
would cause the disallowance of Teacher Retirement System credit earned by
numerous individuals who served as county school personnel. The Teacher
Retirement System has come to the same conclusion with regard to this provision,
and as the agency responsible for administering the statute its interpretation is
entitled to weight. .&e Attorney General Opinion H-671 (1976).
You next ask whether the passage of Senate Bill 1327 by the 65th Legislature
makes section 3.37(d) inapplicable to the county judge of Fayette County. Acts
1977, 65th Leg., ch. 544. Senate Bill 1327 abolishes the board of county school
trustees in Fayette County and provides that
[il n serving as ex officio county school superintendent, the
county judge of Fayette County shall perform the duties of
that office without additional compensation.
Sec. 2. In our opinion, Senate Bill 1327 is unconstitutional as a local law regulating
the affairs of a county and the management of school districts. Tex. Const. art. 3,
S 56. See Culberson County v. Holmes, 513 S.W.2d 126 (Tex. Civ. App. - Rl Paso
1974, no writ); Attorney General Opinions H-641, H-545 (1975); H-52 (1973).
Consequently, Senate Bill 1327 is void and has no effect.
SUMMARY
A county judge serving as ex officio school superintendent is
barred by section 3.37(d) of the Education Code from
receiving teacher retirement benefits during his service.
Senate Bill 1327 enacted by the 65th Legislature is unconsti-
tutional as a local law.
~-Wry truly YOU=,
p. 4659
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Honorable John Wilson - Page 3 (H-1147)
APPROVED:
Opinion Committee
jst
p. 4660