34 TAC §§31.11 - 31.18
The Teacher Retirement System of Texas (TRS) adopts on an
emergency basis amendments to §§31.11-31.18, concerning employment
after retirement. The sections being amended relate to employment resulting
in forfeiture of service retirement annuity, exceptions to forfeiture of service
retirement annuity, substitute service, one-half time employment, six-month
exception, acute shortage area exception, principal or assistant principal
exception, and the bus driver exception. The amendments are adopted on an
emergency basis pursuant to §2001.034 of the Government Code, which allows
a state agency to adopt emergency amendments if a requirement of state or
federal law requires adoption on less than 30 days notice. The amendments
are simultaneously being proposed for permanent adoption in this issue of
the
Texas Register
.
The amendments are being made in order to immediately comply with HB 2169
and HB 3237, which took effect when signed by the Governor on June 20, 2003.
The amendments to §31.11, §31.12, and §§31.14-31.18 include
language providing that employment by a third party entity is considered employment
by a Texas public educational institution unless the retiree does not perform
duties or provide services on behalf of or for the benefit of the institution
or the retiree was first employed by the third party entity before May 24,
2003. In addition, amendments to §31.13-31.15 relating to substitute
service clarify that effective September 1, 2003, substitute service and half-time
employment may be combined in the same calendar month without forfeiting the
annuity payment for that month. TRS finds that requirements of state law require
the adoption of the amendments on fewer than 30 days notice.
The amendments are adopted on an emergency basis under the Government
Code, Chapter 825, §825.102, which authorizes the Board of Trustees of
the Teacher Retirement System to adopt rules for eligibility for membership.
The amendments are also adopted under House Bill 2169, 78th Legislature, Regular
Session, which provides that employment of a retiree by a third party entity
may be considered employment by a TRS covered employer for purposes of employment
after retirement. The amendments are also adopted under House Bill 3237, 78th
Legislature, Regular Session, which provides that retirees may combine substitute
service and one-half time employment in the same calendar month without forfeiting
the annuity payment for that month. As described above, the sections are also
adopted under Government Code §2001.034.
No other codes are affected.
§31.11.Employment Resulting in Forfeiture of Service Retirement Annuity.
(a)
A person who retired prior to January 1, 2001, and who
is receiving a service retirement annuity may be employed in any capacity
in Texas public education without forfeiture of benefits for the months of
employment.
(b)
A person who retired after January 1, 2001, and who is
receiving a service retirement annuity, is not entitled to an annuity payment
for any month in which the retiree is employed by a Texas public educational
institution, unless the employment meets the requirements for an exception
to forfeiture of payments under this chapter.
Effective June 20, 2003
and for purposes of this chapter, employment by a third party entity is considered
employment by a Texas public educational institution unless the retiree does
not perform duties or provide services on behalf of or for the benefit of
the institution or the retiree was first employed by the third party entity
before May 24, 2003.
(c)
A person who is receiving a service retirement annuity
may be employed in private schools, public schools in other states, in private
business, or in other entities that are not TRS-covered employers without
forfeiting their annuities.
(d)
This chapter applies only to persons retired under TRS.
It does not apply to persons retired under other retirement or pension systems.
§31.12.Exceptions to Forfeiture of Service Retirement Annuity.
A person who is receiving a service retirement annuity who retired
after January 1, 2001, forfeits the annuity for any month in which the retiree
is employed by a public educational institution covered by TRS, except in
the cases set forth in §31.13 of this chapter (relating to Substitute
Employment), §31.14 of this chapter (relating to One-half Time Employment), §31.15
of this chapter (relating to Six Month Exception), §31.16 of this chapter
(relating to the Acute Shortage Area Exception), §31.17 of this chapter
(relating to the Principal/Assistant Principal Exception), and §31.18
of this chapter (relating to the Bus Driver Exception).
Effective June
20, 2003 employment by a third party entity is considered employment by a
Texas public educational institution unless the retiree does not perform duties
or provide services on behalf of or for the benefit of the institution or
the retiree was first employed by the third party entity before May 24, 2003.
§31.13.Substitute Service.
(a)
Any person receiving a service retirement annuity who retired
after January 1, 2001, may work in a month as a daily substitute in a public
educational institution without forfeiting the annuity payment for that month,
provided the pay for work as a substitute does not exceed the daily rate of
substitute pay established by the employer.
Employment by a third party
entity is considered employment by a Texas public educational institution
unless the retiree does not perform duties or provide services on behalf of
or for the benefit of the institution or the retiree was first employed by
the third party entity before May 24, 2003, and may not be combined with the
substitute service exception without forfeiting the annuity payment except
as provided in this chapter.
The exception described in this section
is not available to retirees who have elected the exception described in §31.15
of this chapter (relating to Six Month Exception). The exception described
in this section does not apply for the first month after the person's effective
date of retirement (or the first two months if the person's retirement date
has been set on May 31 under §29.14 of this title (relating to Eligibility
for Retirement at the End of May) or under §29.21 of this title (relating
to Effective Date for Disability Retirement).
(b)
A retiree who reports for duty as a daily substitute during
any day and works any portion of that day shall be considered to have worked
one day.
§31.14.One-half Time Employment.
(a)
A person who is receiving a service retirement annuity
may be employed on a one-half time basis without forfeiting annuity payments
for the months of employment.
Employment by a third party entity is considered
employment by a Texas public educational institution unless the retiree does
not perform duties or provide services on behalf of or for the benefit of
the institution or the retiree was first employed by the third party entity
before May 24, 2003.
(b)
One-half time employment measured in clock hours shall
not in any month exceed one-half of the time required for a full time position
in a calendar month or 92 clock hours, whichever is less. Because the time
required for a full time position may vary from month to month, determination
of one-half-time will be made on a calendar month basis. Actual course instruction
in state-supported colleges (including junior colleges), universities, and
public schools shall not exceed during any calendar month one-half the normal
load for full-time employment at the same teaching level.
(c)
For bus drivers, "one-half time" employment shall in no
case exceed 12 days in any calendar month, unless the retiree qualifies for
the bus driver exception in §31.18 of this chapter (relating to Bus Driver
Exception). Work by a bus driver for any part of a day shall count as a full
day for purposes of this section.
(d)
This exception and the exception for substitute service
may be used during the same school year provided the substitute service and
one-half time employment do not occur in the same month.
Effective September
1, 2003, this exception and the exception for substitute service may be used
during the same calendar month without forfeiting the annuity only if the
total number of days that the retiree works in those positions in that month
does not exceed the number of days per month for work on a one-half time basis.
§31.15.Six-Month Exception.
(a)
Any person receiving a service retirement annuity, who
retired after January 1, 2001, may, without forfeiting payment of the annuity,
be employed on as much as full time for no more than six months in a school
year if the work meets the requirements in subsection (b) of this section
and the person complies with the requirements of subsection (c) of this section.
Employment by a third party entity is considered employment by a Texas public
educational institution unless the retiree does not perform duties or provide
services on behalf of or for the benefit of the institution or the retiree
was first employed by the third party entity before May 24, 2003.
(b)
The work must occur:
(1)
in no more than six months in a school year; and
(2)
in a school year that begins after the retiree's effective
date of retirement or no earlier than October 1 if the effective date of retirement
is August 31.
(c)
A person who retired after January 1, 2001, and who, during
a school year, has already used the exception described in §31.13 of
this chapter (relating to Substitute Service) or §31.14 of this chapter
(relating to One-half Time Employment) is eligible for the exception described
in this section during the same school year. However, the permissible substitute
service
,
[
or
] the employment for work at no more than
half time during the same school year
, and any combination in the same
calendar month of substitute service and one-half time employment
must
be included in the six months of employment allowed under this section. The
six-month exception will be allowed so long as the retiree is eligible and
is reported under that exception by the employer. A retiree using the six-month
exception must use the first six months of a school year in which any work
occurs. In the event the retiree wants to use the six-month exception and
has not been reported in that manner, the reporting entity must notify TRS
in writing by amending the previous TRS 118, Employment of Retired Member(s),
report(s).
(d)
A person who retired after January 1, 2001, and is using
the six-month exception, will forfeit an annuity payment for any month in
the school year for work in excess of the six-month period. This applies even
if the work would otherwise qualify for an exception under §31.13 of
this chapter (relating to Substitute Service) for substitute work or for exceptions
applicable to one-half time or less employment, employment as a bus driver,
employment in an acute shortage area, or employment as a principal or assistant
principal.
(e)
A retiree may elect to revoke the six month exception by
submitting the election in writing and returning any ineligible payments.
(f)
A retiree employed under the six-month exception who, during
the same school year, also works as a substitute or one-half time or less
may not be employed in or reported under the substitute or one-half time category
during the remaining months of the school year.
§31.16.Acute Shortage Area Exception.
(a)
A person who is retired under Government Code, §824.202(a)
without reduction for retirement at an early age and who teaches at least
one classroom hour per day in an acute shortage area in accordance with Government
Code, §824.602(a)(5) will be considered eligible for the employment after
retirement exception described in that section.
Employment by a third
party entity is considered employment by a Texas public educational institution
unless the retiree does not perform duties or provide services on behalf of
or for the benefit of the institution or the retiree was first employed by
the third party entity before May 24, 2003.
(b)
A retiree eligible to work under the acute shortage area
exception must elect in writing on a form prescribed by TRS to take advantage
of the exception no later than the end of the first month of employment under
the exception or 30 days after the date of employment, whichever is later.
(c)
If the form is not received and the retiree continues to
work on a full time basis for more than six months, the annuity payments will
be suspended each month in which work is performed until the election form
is received by TRS.
(d)
In the event the retiree elects to use the acute shortage
area exception and has not been reported in that manner, the reporting entity
must notify TRS in writing by amending the previous TRS 118, Employment of
Retired Member(s), report(s).
(e)
The 12 month separation period required under Government
Code, §824.602(a)(5) for the acute shortage area exception may be any
12 consecutive months following the month of retirement so long as the retiree
is not employed in any position or capacity by a public educational institution
covered by TRS during any part of each of the 12 months.
Employment by
a third party entity as described in subsection (a) of this section is considered
employment by a public educational institution covered by TRS for purposes
of this subsection.
§31.17.Principal or Assistant Principal Exception.
(a)
A person who has retired under Government Code, §824.202(a)
without reduction for retirement at an early age and who is hired as and performs
the duties of a principal or assistant principal as certified by the employer
in accordance with Government Code, §824.602(a)(6) will be considered
eligible for employment after retirement under the exception described in
this section.
Employment by a third party entity is considered employment
by a Texas public educational institution unless the retiree does not perform
duties or provide services on behalf of or for the benefit of the institution
or the retiree was first employed by the third party entity before May 24,
2003.
(b)
A retiree must elect in writing on a form prescribed by
TRS to take advantage of the exception described by this section no later
than the end of the first month of employment under this section or 30 days
after the date of employment, whichever is later.
(c)
If the form is not received and the retiree continues to
work on a full time basis for more than six months the annuity payments will
be suspended each month work is performed until the election form is received
by TRS.
(d)
In the event the retiree elects to use the principal or
assistant principal exception and has not been reported in that manner, the
reporting entity must notify TRS in writing by amending the previous TRS 118,
Employment of Retired Member(s), report(s).
(e)
For the principal or assistant principal exception, the
12 month separation period required by Government Code, §824.602 may
be any 12 consecutive months following the month of retirement so long as
the retiree is not employed in any position or capacity by a public educational
institution during any part of each of the 12 months.
Employment by a
third party entity as described in subsection (a) of this section is considered
employment by a public educational institution covered by TRS for purposes
of this subsection.
§31.18.Bus Driver Exception.
(a)
A retiree who retired under Government Code, §824.202(a)
without reduction for retirement at an early age and who drives at least one
Texas Education Agency (TEA) approved bus route per day will be considered
eligible for the bus driver exception under Government Code, §824.602(a)(6).
Employment by a third party entity is considered employment by a Texas public
educational institution unless the retiree does not perform duties or provide
services on behalf of or for the benefit of the institution or the retiree
was first employed by the third party entity before May 24, 2003.
(b)
In the event the retiree wants to use the bus driver exception
but has not been reported in that manner, the reporting entity must notify
TRS in writing by amending the previous TRS 118, Employment of Retired Member,
report(s).
This agency hereby certifies that the emergency adoption
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State on July 2, 2003.
TRD-200304087
Charles L. Dunlap
Executive Director
Teacher Retirement System of Texas
Effective Date: July 2, 2003
Expiration Date: October 30, 2003
For further information, please call: (512) 542-6115
Subchapter C. EMPLOYMENT AFTER DISABILITY RETIREMENT
34 TAC §§31.31 - 31.34
The Teacher Retirement System of Texas (TRS) adopts on an
emergency basis amendments to §§31.31, 31.32, 31.33, and 31.34 concerning
employment after retirement. The sections being amended relate to employment
resulting in forfeiture of disability retirement annuity and exceptions to
such forfeiture for disability retirees, specifically half-time employment
up to 90 days, substitute service up to 90 days, and employment up to three
months on a one-time only trial basis. The amendments are adopted on an emergency
basis pursuant to §2001.034 of the Government Code, which allows a state
agency to adopt emergency amendments if a requirement of state or federal
law requires adoption on less than 30 days notice. The amendments are simultaneously
being proposed for permanent adoption in this issue of the
Texas Register
.
The amendments are being made in order to immediately comply with HB 2169
and HB 3237 which took effect when signed by the Governor on June 20, 2003.
The amendments to §§31.31-31.34 include language providing that
employment by a third party entity is considered employment by a Texas public
educational institution unless the retiree does not perform duties or provide
services on behalf of or for the benefit of the institution or the retiree
was first employed by the third party entity before May 24, 2003. The amendments
to §31.32 and §31.34 relate to substitute service and clarify that
effective September 1, 2003, substitute service and half-time employment may
be combined in the same calendar month without forfeiting the annuity payment
for that month. TRS finds that requirements of state law require the adoption
of the amendments on fewer than 30 days notice.
The amendments are adopted on an emergency basis under the Government
Code, Chapter 825, §825.102, which authorizes the Board of Trustees of
the Teacher Retirement System to adopt rules for eligibility for membership.
The amendments are also adopted under House Bill 2169, 78th Legislature, Regular
Session, which provides that employment of a retiree by a third party entity
may be considered employment by a TRS covered employer for purposes of employment
after retirement. The amendments are also adopted under House Bill 3237, 78th
Legislature, Regular Session, which provides that retirees may combine substitute
service and one-half time employment in the same calendar month without forfeiting
the annuity payment for that month. As described above, the sections are also
adopted under Government Code §2001.034.
No other codes are affected.
§31.31.Employment Resulting in Forfeiture of Disability Retirement Annuity.
(a)
A person receiving a disability retirement annuity forfeits
the annuity payment in any month in which the retiree is employed by a public
educational institution covered by TRS, unless the employment falls within
one of the exceptions set forth in this subchapter.
Employment by a third
party entity is considered employment by a Texas public educational institution
unless the retiree does not perform duties or provide services on behalf of
or for the benefit of the institution or the retiree was first employed by
the third party entity before May 24, 2003.
(b)
A person receiving a disability retirement annuity may
not exercise the exceptions applicable to service retirees in §31.15
of this chapter (relating to Six Month Exception); §31.16 of this chapter
(relating to Acute Shortage Area Exception); §31.17 of this chapter (relating
to Principal or Assistant Principal Exception); and §31.18 of this chapter
(relating to Bus Driver Exception).
§31.32.Half-time Employment Up to 90 Days.
(a)
Any person receiving a disability retirement annuity may,
without affecting payment of the annuity, be employed for a period not to
exceed 90 days during any school year by public educational institution covered
by TRS on as much as one-half the full time load for the particular position
according to the personnel policies of the employer.
Employment by a
third party entity is considered employment by a Texas public educational
institution unless the retiree does not perform duties or provide services
on behalf of or for the benefit of the institution or the retiree was first
employed by the third party entity before May 24, 2003.
Total substitute
service under §31.33 of this chapter and half-time employment may not
exceed 90 days during any school year.
Effective September 1, 2003, substitute
service under §31.33 of this chapter and half-time employment may be
combined in the same calendar month only if the total number of days that
the disability retiree works in those positions in that month do not exceed
the number of days per month for work on a one-half time basis.
This
exception does not apply for the first month after the retiree's effective
date of retirement (or the first two months if the person's retirement date
has been set on May 31 under §29.14 of this title (relating to Eligibility
for Retirement at the End of May) or under §29.21 of this title (relating
to Effective Date for Disability Retirement)).
(b)
"One-half time" employment measured in clock hours must
never exceed one-half of the time required for the full time position in a
calendar month or 92 clock hours, whichever is less, and may not exceed a
total of 90 days in a school year. Determination of one-half time will be
made on a calendar month basis as the full time load may vary from month to
month. Actual course instruction in state-supported colleges (including junior
colleges), universities, and public schools shall not exceed during any month
one-half the normal load for full-time employment at the same teaching level.
(c)
"One-half time" employment for bus drivers shall in no
case exceed 12 days in any calendar month. Work by a bus driver for any part
of a day shall count as a full day for purposes of this section.
§31.33.Substitute Service Up to 90 Days.
(a)
A person receiving a disability retirement annuity may
work as a substitute in a month without forfeiting the annuity for that month
subject to the same conditions as apply to service retirees except that the
total substitute service and one-half time employment in the school year may
not exceed 90 days. This exception does not apply for the first month after
the retiree's effective date of retirement (or the first two months if the
person's retirement date has been set on May 31 under §29.14 of this
title (relating to Eligibility for Retirement at the End of May) or under §29.21
of this title (relating to Effective Date for Disability Retirement)).
Employment by a third party entity is considered employment by a Texas public
educational institution unless the retiree does not perform duties or provide
services on behalf of or for the benefit of the institution or the retiree
was first employed by the third party entity before May 24, 2003.
(b)
Any disability retiree who reports for duty as a substitute
during any day and works any portion of that day shall be considered to have
worked one day.
§31.34.Employment Up to Three Months on a One-Time Only Trial Basis.
(a)
Any person receiving a disability retirement annuity may,
without forfeiting payment of the annuity, be employed on a one-time only
trial basis on as much as full time for a period of no more than three consecutive
months in a school year if the work meets the requirements in subsection (b)
of this section and the person complies with the requirements of subsection
(c) of this section.
Employment by a third party entity is considered
employment by a Texas public educational institution unless the retiree does
not perform duties or provide services on behalf of or for the benefit of
the institution or the retiree was first employed by the third party entity
before May 24, 2003.
(b)
The work must occur:
(1)
in a period, designated by the employee, of no more than
three consecutive months of a school year; and
(2)
in a school year that begins after the retiree's effective
date of retirement or no earlier than October 1 if the effective date of retirement
is August 31.
(c)
A retiree must elect in writing on a form prescribed by
TRS to take advantage of the exception described by this section no later
than the end of the first month of employment under this section or 30 days
after the date of employment, whichever is less.
(d)
Working any portion of a month counts as working a full
month for purposes of this section.
(e)
The three month exception permitted under this section
is in addition to the 90 days of work allowed in §31.33 of this chapter
(relating to Substitute Service up to 90 Days)
or §31.32 of this
chapter (relating to Half-time Employment Up to 90 Days)
for a disability
retiree.
This agency hereby certifies that the emergency adoption
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State on July 2, 2003.
TRD-200304088
Charles L. Dunlap
Executive Director
Teacher Retirement System of Texas
Effective Date: July 2, 2003
Expiration Date: October 30, 2003
For further information, please call: (512) 542-6115