Untitled Texas Attorney General Opinion

Ronorabls John F. Rudd Aotlng Dlreotor Teeoher Retirement System of Texas Austin, Texas Dear sr : O~lhion No. O-3152 Rer Status of teechcr on learo of sbsenw. We have reoeived your letter of AufSust 12, 19bl, and alao your supplementary letter thereto of September 20, 19bL In your supplementary letter you set out oertein roots relating to three iudlvlduala, and you are mm oonoerned nfth their stetua. We quote from suoh letter a6 follmar "1. Pm. hTyrtle Gray WEM re-el~eetedas a teacher In the Fort Worth Public Schools ior the sehool year 1937-38 st a regulsr aeet~ng of the Board oi Education of the Fort Worth Independent %haol Distriot held ou June 4, 1937. Em amtraet was for a term of apt) g;tar&-g: E; :::&+za,:n%%? de& &ring the early pert of June, 1937, end wea tumble to ramme her sohool work. Under the xegalstlous gwemfng the Fort Worth Indep#ndent School Dlstriet, the SuperLntendent of Schools has been authorized to grant leave of absence on aooount of serious illness. The Fort Worth F?uperintendentstates that he had hoped that she would reamer an8 resume h6r uork some time during the 1937-38 iaoh.001 year, and that e oubstltute teaoher was asalgned to hex poaltlon end the poeltion held ror her in case ahe was able to teaoh letor. The Port Worth Superintendent advised us further aa tallows: 'At the be+#nIlingof 1938-39, m-8. Gray was still unable to resume her school work. ??owever, under the regol8tion3 authorixlw tho superintandent to pant lame of absence to e tesoher because of serious illness, Km. Qrrnywac considered

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as a lesve of absenae teacher. In CBS8 of prolonged Illness, it has bean customary to aontinue the grant of laave of absence for a pd0a of more than one ycsr, if there Is a probability that .ateacher may ;;;;r=return to eerviae~within the school Since Mrs. Gray was unable to wr%te Loause of the nature of her injury, applioatlon ror leave of absance was not required in her oase. Beaause of my D~rsonal knowledge of her physioul aondi- tion, lrnve of ebscpnaeWES extended.' L&a, Gray wns employed in the Fort 'Corth~ohools in the 1339-13&O ond the 19bO-19Ll school yesrs as a rttsiorve teacher at a salary of $631.80 per year.

"2. Haa Bartha Graham waa given a taaahar*a contract for the school.term 1937-38 a8 a teacher in the publio schools of Delhart under d,r:teof ‘by 4, 1937. Under date of Kay 14, 1937, i&se Graham acoepted and signed the oontraot. At a meetlny,of the Board of Truetees of tCe Dalhart Tub110 rahools held on irumet 20, 1937, MEies Gsim was granta? a leave of absence for one year. * Graham advises UB: '1 had no oontrect for later years, as 1, was uneble to return to work on eoaount of my health. Bowaver, I was aerrlcd as a teaoher on leave of absenoe and could'have returned to work at any time, had i been able.* "3. Gn Septambar lb, 1937, the Dallas Board of Eau08ti0n paasea the r0n0wing lnotiont *that Was Anne Kagser ba re-eleoted as e teacher in,the elemantarg schools at a salary of @!,OOO.OO par school year of nina months, and that ahe be allowed a leave of abaenee for the session 1937-38 on eocount of har health.' Under date of septambar 29, 1937, #ins hnne Kayser exaouted e aontract, oopy of whlah is attached hereto. Under date ~of August 30, 1938, the Dellas Board of Education pessad tha tollowlug motion:

'The election of the followinK teachers was held up at the regular election in June, on aocount .of failure to nest oer- teln requfrements. These requirements have now been met, end I reoomen8 that they be re-elected. Falary Inoreasa I:hl.te 'Jlemantaq 1937-38 1938-39 . . . . . .. Yeyser, Anne $2000.00 ": ' Under date of C:eptembar13 1938, the Dallas Board Of T..du.ontion foiloY.4nf? psz.sebtit-0 motion:

*that the resignation of Anne Kagser be ao- ueptecl,am3 thet S special teacher be : authorized for City i'arkrchool at a salary of $100.00 per sahool month.'" We how return to your first letter to get the whhlchthe Teaaher Retirement tbstrUdesires ?uch questions read as followet "1. In the event the individual furnished sstisfsatory Fvldence to the effect that such individual waa prevented from returniug to active smvlae beceuse of physioel oohditiou, would the Boerd of Trustees be oarryihg out the intent of the Retirement Law and would they be aotlri within the llmitetions imposed by the law on the Board of Trustees ti they ruled that the individual hsd established nxmbership In the Teaaher Retirement ~yntars,was entitled to oredit for prior servioe, and ~8 eligible to reeelve benafits in aoaordanoa with end subjeot to the provisions of Eectlon 5 of the Teeoher Rstiremant IRW?

“2. In the event the individual furnished satisfaatory evidence to the effect that such lndlvldoal was prevented from returning to aotive aerviae beoauss of p47ysic81condition, would the Board of Trustees be carrying out the intent of the Retirement Iaw and would they be eating v&thin the limitetiona imposed by t&e law on the Board of Puatees if they ruled that the meaber had not establlahed oredit for prior seniee and refused to fasue a prior service aertifioate to the indiri&alO

“3. In the event the individual cannot furnish satistaotory evidenoe to the effect thet saeh indlvldual wa8 prevented from re- turning to,aative E6rVi06 because of phyS%O.oSl oondltion, would the Board of Trustees be oarrging out the Intent of the fietlrementLew and *wouldthey be aotinp within the ~bitetions imposed by the law on the Board of Trustees %f they ruled that the indivitluslhad established membership in the Teacher Iietirelaent system, wae entitled to aredtt for prior service, snd wae ellglble to receive benefits in accosdanoe with and subject to ths provieiomi of Section 5 of the Teacher Ratirement Law?

“4. In the event tt;eindividual o~nnot furnish sstisfaotory evidence to the effsat that suoh individual WRB prevented from return- ing to ective service beosuse of physinal aondi-~ tion, woultithe Hoard of Trustees be carrying out the intent of the Retirement LBw and would they be aoting within the lirai?.etionaimposed by the law on the board of Trustees if they ruled that the member had uot established credit for prior service and refused to Issue B prior serviae oertificate to the individualY'1

. . "Teeaher" la defined 3y t7ectfon1 of the Teacher Retirwnt Act (4rtiCle 2?22-1, Vernon's Imnotated.Citil Ct;fitutes) IJSfolloEs: “(3) 'Teticher'shall mean a person employe& ~OLIa ruin time, regular salary bar%- by SoarC? of OQLQEIOLI sohoG dlstriets, boards of independent sahool distrlotti,county sohoG boards, Retire+ sent Boerd of Trustees, Ftate kxrd of rXiuostlon end State Department of Rduoation, bosrds of regents of colleges nnd unlversitle6, and any other legally COn8titUted board or cX3?nCyOf an educational institution or organization supported vrhollyor pertly 3y the Yxte. In all cases of doubt, :he Retirement hard of Trusteer, herein- after defined, shall determine whether 5 person is 6 teether 88 tiefinedin this Act. A teacher ahall mean a person renc:er& service to organized putl.iceducation in professional a:~?buslneas admfnistration ane supcrvlsion~and in instruction, l.npublic SOhoolS a5 E,efincdin C'ubsectiOn(2) of thin %ction." Zubseotlon 1 of Pection 3 of the Aot reads as fclloW!4: "(I) All personr who are teachers on the date as of whioh the Retirement bystem ir established s&13. beoomc members 86 of that date as a condition of their employment unl,e.~swithin a period of ninety (90) deys :~:fterrentamber 1, 1937, any suoh teeoher shell file rith the F?tateRosrd of Trtieteeson a form preecribed by such Boerd, e notice of hie el-cctlonnot to be covered In the membership of the zgmtem and a duly exsouted. waiver of all present end nrospeotive benefits whloh would otherwise hir8 ,to him on aOOOMt of his pHrtiCipatiQn in the Retirement Gystem." We quote Suboeotion 1 of ?eotion 4? **(l)Under such ruler and regukttions OS the ftete Board of T'rur,tees s1;alladopt eaoh person who wes a teaoher, ad defined in this net, et any tLsledurioe the year Lmmcdlatelg pre- the ent8blieha\ent oedi.n,c of the ~yctern,and who beaonen 8 menrbfzr during the first year of opera- tion of the RetireEtent!$X'tem,Or Wh.GIS R member at the beginning of the Eohool yaar 1937-1938, shall file a detailed nthtement of all Texas service, ac a teacher, rendered by him prior to the date of establishment of the Retirement ?y:rtemfor xhioh he cleiFi5 oredit." se@ under the terms of the statute that Thue, x'f? those persons who were tsaohers on !;hedate of eatebU.shmemt of the Teaoher Retirement System became mambers thereof (IS of that date, unls::sthcspeoifled notice snd waiver Were rile. liemust therefore determine who were teaohers on the date Gf establishxent of the Teacher 1:etirementSystWlL

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. The Teacher Retirement System WSS establlahsd oa July 1, 1937. ?<<ction2 of urtic1e,2922-1; opinion No. o-&+4. ReferrinK to 5eetlon l(3); we see that there ara two requirements in the.definitl.onof '%eachern: namely, (1) "employed on a full tlm, regular salary bs*& y;ya person Venderill;:service to organized publia education in :::ofesslonalSIX?buSineSs ad&n- istration and supervision andin iastruation, in pob- lie soh001s. . . " 7x3 do no: believe that the second reqtiiremeat mekel:it noccsSerg i&t a person be "rendering:service" on July 1, 1737, for e.erbershlpin tte ry:.temas of that date. TV*pre cf the oninlonthnt tt& requirement is 'aothlnp:r:larethen e ~enerallzetion of tl?etype of work whleh rmuet be done before a person mey qualify es a "teacher" under th e Act. ".'ereeahed thi::Same conola- sion in Opinion Xc. o-61+6,rendered on Nay 17, 1939, to Honorable Mortimer Ffrown,Exeoutive Zeoretary, Tescher Retirement Cysten of Terss. .-equotefron that opinion ss follo~Is: n . Ve do not think that 'rendering aen& io or,fenizbdFublio eduaatio& * eta., was intended to man that in order to'lm a teacher, a8 defined in this ket, thet the person would necessarily have to ?S at that tima eatually engegnd in suoh servloe, but rather that this q-ovislon in descriptive of the ty?ieCC'work necessary tc ti ptrfommd to cual.ifyas a teacher. This construotloa beoomas more evident whenvarious motions ai the Aot are vonsMered, suoh as Section 3, %baeotloa 1, *.&lchprovides that al.1persons who are taachers on the date aa of wbloh the Retirement Eystum is astablished ahall beaoma m&bers, bee&use it is evident that it wss intended by such section to reaoh every person en&aged in the profession of a tcaoher, when, in foot, the date upon whloh the Frystemwas esteblisbed wvs Tuly 1, anfies s mottc? of oonxnonknowledre iew teaohers were aotuallg engegtd in rend.erincthe Servioe defined at that time." It !'ollovsthat those persons engaged in the prcfession of ttecblng end enployr:don a full time,reg- ular Salary basis to render service to Rorganized pubUo oduestion in professional, end bosfness sdminis- tration end suparviaion and in instruction, in publlo schools* on the fate thet the Fystbm WSS establishad became members thereor 8s oi thr;tdflteregzrdlt:s~S of whether they were actually **rbni6;rin~ 5ervice." i:c; d.11 noLr turn 50 t::t, S!~eoiZicr fact situa- tions presented in your letter of :-&i:.terr,ber 20, 1941. 1. On UTuneI+,1937, ti:eBoard of Educotlon of the Fort ;;!orth Indeendent khooi Ulztrict z-e-electedMrs. i:yrtleGray rs F;tevoker. Her contract wau ror a tam

:-ion. ;ohr :,.tttiua - ~'tiga 0 - of on6 year baginnIng JUlY 1, 1937, md we assume rmfti the aonted 0::both your letters:thtitShe WaS 8mplOyR% * on c full tln~ regular selury. 7.hi-r.2not hrOrmd aaather ohe wes aatually teachin-,tit. tht tlmaor the aon- tre&, but In vlow of our holdln(:that "randering servloa* is merely descriptive of the ty$a of L$ork%O be performed, it %&es no dlfierenac whether ahheWAS teaching July 1, 1937. i7eziraof the opln!.on",hetshe beceme a member of the Tesoher Rztfremant sgstey on thsf d!3te, I&S. Gray X%S st;riously Injured Irkan automobile acaldent b&ore sciioolopened, unilWBS p$ant%d a leave of ebsence. A substltuta teacher yeas ssuigned to her position, but it wna hoped that she ilouldrscover %nd raaune her work durln thtatyear. ..f$t tha bf$:lnnlnr: a~ tha next sahool. year, l&o. Gray was still unable to :~aturnto her poaftlon, end w%s aonsldered a leave of sbsence taechsr. The was employed In the Fort '.~;orth ;:choclu1~:the lgjg-1940 and 19&O-19941sahool yeera %s a rasarve tescher at e ealery or $631.80 per ywr, The Teaaher Retirement Board reel.lzadthat e number of teeahara would be on leave of absence during the sahool yeer 1937-1438. It, the,refCZe,passed th% following, regulation: "1x. Ch%ver moved that In VIEW cf the feat thet subseotlon~l of %otiCn 3 stipUht8S that '811 persons who arc teachers on the date es or whlah the Xetlrement System is established shall baaome nwmbers’ end in vlaw of the faat that subseotfon 3, ::ectlon1 ocyo that 'tsaoher shall mean e person employed cs a full-time regular salary b%sls by boerb::of school ulstrlat%, etc.', aerteln 8~~ealrlaraqulre- ments %+hell ka mede of 8 taecher on lrevs of ebseaoe Uurln~ the schocl year 1937-38 If he ,ls to be included in the mwib,erst?&of the Retirement System and not lmp~lr hle right% to prlor-servfae credit by being on leeve or abaenae during the school yeur 1931-38, %e r0ii01a : A statement sunt be received rrom the euperlntendent of schools or from the ares- ldent ai the boord of aducM,ion of the employing dfatrlut stating that tha teaaher was-an employee or the system durlny:thb SO?lOGl gear 1934-37, that the tcechar is considered a member of the raoulty for ths yr-ar’1937-38xlth H leave of tlbsenoefrom ciotiVe Work imi!tt:f!t the tescher h8s e deflnlte ngreement with thf Board to return to work in the erasexyrter:for the per 1938-1939. K&ion P'IG~ r.e:ondedby Er. Xillc and aerrled,H :'c:2ra Informed that the stetement requlrad by the above c:uotedregulation wiinreceived for ?'Jlr;. Gr%y, and slso for the persons lnvolvad ir,tileothar t-o factual setups. Xe ire &is0 lnforrxd th;;t011 tnxxe ol'the persons were eligible for benerits under the Act if they mm'0 JZBI+ bers 0: the Retirement :~g~tem,

Rid tiheTeaoher Retirement Rocrd in the exerelse 0:'the rule making ponsrn granted by Article 2922-1, ,hare euthority to pass 13reglilationcovering teaohers on leave of sbsenoe? If 60, then under the above quoted regulation end Eeotion .!+(l! 0:'the Act, t&a. Gray is antitled to. prior-service credit. On September 22, 1937, this departxnentruled in a letter opidon~ addressed to Honorable MortAmar Brown that onoe a teaaher beooslese member of the Teaoher . Retirement c.yctem,he annnot withdraw from nembershl except (1) to ceasa belnr!e teacher, (2) or uie, or P 3? to be retlrcd w;itha disability benefit or on acaount of 6~e with mob annuity or othtr benefit na 1:;selected by the teacher. This boldinV was affir:::&in Opinion lUo.O-1930, rendered on Oatober ij, 193?. Zo lionorable J. C. Patterson, County I:ttorney,Betnjamln,:'axas. Era. Gray ~a!6under oontrsct, but wss panted a leave cf'abaenoe beoause of her injury. ;. s~ubstltutb teacher was assigned to her place, but Kra. Gray, if she had recovered safficiently, would hrve:returned to work. She was under duty end had e right to resume her duties upon reoovery. ::aare of the opinion thst she did not oease beiN: u teaaher. l

In the uese of People I. Lynch, 149 N. Y. 6. 895, plaintiff instituted proaecdincs for E mandacpueto oo&pel the labor Conariasionerof the 3,?te of New 'Pork to reinstate her as an employee. Yhe had been manted 8 leave of absence because of poor haalth. Upon re- 0oVery i'romher i1lIleaS6h0 wrote to the Commissioner requesting that her leave of absence be terminated and that she be aseigntd to'duty, .Aotlon on her request ~8s delayed, and she instituted these proceedings. The Ccetsnlssioner's defense we8 that si.naethe plaintiff had been separated fran~her work for mora than a yeer, ehe oould not be reinsteted withont another civil aerviue exaainetlon. He relied on that part of Rule 16 of the State Clvfl Seniae ColrBisslon,which read as follows: "Any person who has held a position by appointxent under the oiVi.1 swviee rules, and who has been separeted from the service through no delinquency or I-asoonduoton his pert, may be reinstated without re-examinetion in a vacant position in the sa.meofflco and in the snme group, subdivision anfigrni:e,within on3 y'i:*r from the data of such separation. .'X *" The oourt overruled&is contention and issued a urit of liaandainus cc1~3palling~ the Conanissionarto rsin- The court held that since the plein- stete the ?,,lainti.ff. tiff had been granted a leave of absence she had not been sopnrot=3dfrom sarvioe. -e quote from the o~&niou or the oourt 85 follows: "Rut St is hljrdlyneceusary to resort to the stetute for an interpretation of thaoondi- tfons here. The hnguege 02 the com&:sioner to ths relator in his letter WHS plain and unambiguous. Eis words CU.IG~ be given their ordinary mening in

RlPgliSb. Fe stated to the relptor: 'You have bmn franted an indefinite leave of absence with- out pap.* These :+ordscould have but one moaning. The comn&ss',onerhad intended at first to diaalse the rsl?t.orcbsolutelg from the service. He re- tr8dXK? when the relator scquelnted h:lawith.the clraumstances and informed him of her illness. It'is idle to say thst he did not intend to eifeat a ahanca by his neoond letter. He thou&t better of hia purpose to absolutely dieoharge the rrla- tor and thw 'sepnrete her from the service'. Insteadof that disposition of her rnattar,he granted her '8~ Indefinite leave of absence*; that is to say, a right to ?:caway from her work indefinitely, ein therefore, by corollary, a right to come back whenever she plaasaa. Che was clvan the absolute pcx:erto Caaido when she would return; the option rested with her alone. ::fcourse, this depended upon her Kood fnith. Zhe yjouldnot be permitted to sbust!the aourtesy Alch had been ax- tended to her. I,E soon as her health returned, It beoame hor duty to return to the sarviae. And she did 80; that iri, indicr:teda desire et least to a0 80. If there were no limitation or lntar- pratstlon in the statute, the wordn* sepfmstion from the mrviaev aould never be held to inelcde a loava of absenoe from the acrvice. Ii the re- lator bed a ri@t at any minute to return to the servlos, she was no more separated from It then an amploge is when on an ordinary two weeks veca- tlon. The right to return in the latter oeae 2s fixed and definite; in the former aase it is not fixed and is indsfinite; but in eeoh oaso there is the && to return, and therefore tha employe is not saparated from, but connected with, the aervLae.* y!'ie are of the opinion that this same reasoning appUea with equal forca to the situation at hand, an4 that l&a. @r8g was not separated from her position es i tseohor, We are, therefore, of the opinion thet the Teacher Hetirament Board had the authority to pase raw- latlona oovering teaahare on leave of absenoa during the sahool year 1937-1938. 'i'he terns of He:;ulotlon190,f+ were oompU.ed with when the aohool superintendent sent to the Eoard the required statement. Thus, it folloptcthef Mrs. Gray became entitled to credit for prior service. We gather from your letter that s contract wan not entered into for the mhool year 193 8-1939 shoe h&s. Gray was atill ill and unable to return to work. Bow- ever, the leave of obaence was extended. We do not think that the Saot that a 1938-1939 contraat was not entered into arrected the status@ Mrs. Gray as a teacher. \.,aheve heretofore said that the only way a member could rvithdrarv from the Teacher hetiremant Cystem is to oease belnc a teechcr, to die, or to be re- tired. Zhen we speak of a person?8 ceasing to be a teacher, we mean the terntinetlonor ending of the pro- iession of teaohlng.

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Therefore, a person who becoraesa menbsr 01~the Teacher F;etlremsnt:Syatemwfthdrcws hia AmbersDfp it he texmimtes or emis his profession as a teacher. n teacher who is temporarily prevented by ill heaith or serious Injury frm teaah.iAqand who is 0A leave of ebaenoe does AOt Se1380to be a teacher, If such a pexcon inteods to resume his duties ss 6 teaoher ti8A he is able to do 90, CaA it be said that he has endee his profession as a $eaoter. Cleerlg not. It was oortalnly not the leglala- tire intent to penalize a person for being ill. AS we hole thnt %ra. Gray hecanc e mmber of the SycteA zuiy 1, 1937, and did not lose her umbership by virtue of bar lcove of absance, then it follows that she ia ,still c oextcr of the Estlrment ?yr-tern. %I have not been uAe5ndful of t&t part nt aubsectlon (3) of Fretion 3 of the ,:ct~-:Nchi;rovidea in srfsct that a Amber who is absent I'ormm thsn five yearn in any period of six consecutive yccrs after beoos&Ag a mmber ~&illlcae his meAbersh$p. On the other hand, we take the ponltion thzctthla i;rovlaionshowc the legisletlv~ intent thet E! bona Side leave of ebsmee was to bs rocog- Aized. We arc here notconoerned vriththe provision re let&q to the sbsence of inom than rivflyeflrsin anp period of sfx aoneeoutive years. Ejsithersix car ewkn rive years hsve passed since the eotablishlsentof tti System, and we are ooncern%d in this opinfon with the rights of the lndivl~u~l an of this date. ~Eowever,on ::eptembarL, 1941, %*ire rendered to you Opinion Ho. O-35l2, whlah #OAO~~PG the cttxtua of per- 80~6 employed as raserve teaohers by the Fort Worth &de- peAdaRt Cab001 I)ifitriOt. Mrs. Grsy w%a eAployed 66 s re- serve teacher in the 1939-19l+Oand 1940-1941 eohool years. atstns after ehe became a reserve teeoher. this opinton is appliaable to her up to the tlnwr thst'eho beoam a reserve temher. In view of the foregoine:you are respeativqJr advised that under the Tea&or Xet;irenentilctanalRegula- tion No. 4 of the Teaaher Retir~zent hoklnrdyour first question LY answered 112the sffirmtive if the other eo~dl- tifm8 Yeqltired by the Act as t0 ye:xs Of E+?xv~c%, sta., sz~ present; and your moonCr question, in the negative, Ye enwmr ycur third ati r0m.h . quastiona as follows: If the Tzaahar Retirensnt board la satisfied that the leave a? 63senoe ia bona fide, then the Board must give f&s. Gr8y credit for prior r,ersiocand issue to Wrs. Grsy 8 prior mrvlce r;ertificste. Of cource, If a leave of nbc;onceIs in isct a subterfuge and a Aeam of d.ecel~t,than the %ard should not reooguize it. The ti~~~,h.~rto '.&ORrueh rraudulant leava was issued would cee:iebefng a taaoher, and, there- fore, would aeane belq s member or the Cystem. 2% wish to point out t.hstunder Yeotion l+(2)of the Teaohor fiet&rement.4ct :.hatthe Board of tiueteea is

- . . ~utkorizedto *fix Pm3 &t.mmzno by appropriate rules sad regulstions ho% mxk service in 6ng year iE equivalent to one:yr:arof service". It wul% cxwtainlg be \rultMntke powa- and atithorityof the bourd to c;etnrrAnctkat a teeckex on leave who ren6ered no servioe Is not entitled to ereditahle service for the period of tine that tke teeeker was absent.. Upon cuoh doternination, therefore, the period oi time ~Anrs& would!not be counted in lpaklng u@ the zer,ulred*years ci'credit-ble aerviaa" under SW- tlon 5 of the Aot. 2. I.:r 6. Fkxtha Cirdm~ xcs under contraot a6 e taaoher for the public r:cf:oc~lsof'Giilkertat the t&e of the ectablinhment of Teacher Iietiremnt YyPtem. ?ke, therefore, t:eca~~a mmber of the C'yr-ten.iihutwe have aaid viithmimeroe to !Yo. Gray is equally applicable to l&a. Graham. Therefore, as to IrrciGraham we answer your four quastfons in the same manner.

3. Tour third:fact nituetfon ia aonowhet dii- ferent from the prc?cedin~r two. Under data of September 29, 1937. Has Anne Kaysex exfm:tod a teacher.8 contraof. Thus, this oontraot was made at a later data than July 1, 1937. Flowerer,on reptemher 14, 1937, the Dallas Board oS Education pesed a notion in which was seld wthat Mlse ' Anne Kayser ba re-eleated es a teacherv. (I&phasis supplIed) Thfs notion indicates that she was a teaoher for tke pxevlouc y~.sx. Ykerefore. she was a teeoktr on Sev tke date of establishment of the Teacher I?etiremsnt System Andybeoama a member nf the System as of thet date. It follovastt!atwhet 716have eeid re.gardinga leave or ab- senee applies to k?iss?%y88r. On August 30, 1?3t3,the Dallaa Doard ef Sduee tlon psased a motion stating that certain teaahers, smsmg wkom was Miss Kaysar, bed been m-elected es teachers. Bowever, on Saptember 13, 193E, the Dellor Board of Edu- oetlon passed tke i"ollowlngmotion: "L'kstthe resignation oS inne Eaysar be aosepted, and that a s~pecoisl teecker bc suthor- ized~for City Pa* Fob001 at e salary of $100.00 pan ac~hoolm.onth.'* &t first glance it r-toclde::peerfrom the lmi&taal# usdl that Miss Kayssr he6 ended her relat:onshi~ with tka public s&ool nyrten:of LUlas. i&t the motion !:rovfdes that a vsi~~Joie1~teacher bc authorized to teaok. It apd peers thnt the 'Qpscial" teacher wcs'employed to fill Xiss Keyserrs ponltion due to her absence. :'e,therefore, belleve that tNs was nothing more than an extension of the orl&u31 leave oi f3Ssence. If in zact tbo motioc was sn extension of the leave of absence, then the ma-zterchereto- fore dieou:.;aed i:?tkis o:?Inion-re applicabla. If tha rer:gncition~?a rc81, and Bliss Xeysrr thereby en&ad her career WR a teach.sr, then she would no lonr+erbe a member oi the Retirement :'yoten.Tit if in fa2t :zissKeyser resigned beceuze cf pcor health l;itt;Ke lntontlon to re- sume her dntins when she sufficiently rec(vc?re6?,then she has not,ceased be$.nga teacher, anc?she i3 a m%beI! Of the

~yEtX3lll.A per&-riwho is ab8eQt ir%m to%%h~ even %ft%r ,Jresign&ion does not theSeby ceece to be a teacher ii such absence 1s temporery end if such persoo intends to ra'iurnI;0 the J;rofessionafter suoh temporary absanoe, Ye believe that Section 3(3) of the Act (wbioh provid6h t&it a member who is any ;;ericdof 83.xconse%ut2v8 yesm aiter b@orniu& e member, LO absent from sexvice a~ than ilve'yeurs, shall thereupon ceme to te a asmber) i8 %:?~;a? to the type of absences .prenentedin this opinion. sit&r pssaeae oi sufficient tins froz the dnte of eetablishnent or the Teeohcr Retirement Cystem, if a lnembel-~1s absent from servIae, on leave 01'otherwIse, Im 88 low a pwioli of t1Eieas 1: specified in !k3tion j(J), he shall tbL?J-6X&K,Jl Cet3Se to bF3 D ~lCIZte3’.

:iev&h to enphs.~i::etliutit.is the power and duty of the .Bosrdof Trustees of tte Teacher h'etlremnt System to pasn upon mefterr:lXke the OI;C pr&ented ir.this oplaian. It must sstisfy it&e1r the-tthe leavt:or absa&ce is born flclti, that the abcencc is to be only for H tempoxsry perid or t5.m, C%C. '3ialzo wish to amphssizo l.hotthis opinion ia llmIt,edto the fucta Int'olv~CI herein. %e hsve mde eertdn aostamptlon%'onsedon +A0 various fsct situations, but ii 'theseessmptions ere not we1 in feat, then, of ootmm, thm ~prineiples sunounced 8~ to thornwould not bc appZiusb3.e. very truly yours I~':?cmri-Tr:Y G'mYRAL OF z&As