34 Tex. Admin. Code § 123.14 - Certain Convicted Elected Officials Ineligible for Retirement Annuity

(a) This section is being adopted pursuant to Government Code § 810.003 and applies only to a person who is otherwise eligible for membership in the system because the person was elected or appointed to an elected office. In the event that a member or retiree has more than one membership account in the system through employment with more than one participating municipality in the system, this section applies only to the individual account or annuity that is associated with services for the participating municipality where the member or retiree was holding elected office when convicted of a qualifying felony while in that elected office.

(b) Except as expressly provided otherwise, this section shall not apply to system benefits other than service retirement annuity benefits to the extent such other benefits are available to a member or retiree, including but not limited to: occupational disability benefits, or supplemental death benefits payable to the beneficiary(ies) or heir(s) of a member or retiree.

(c) In this section, "qualifying felony" means any felony that is committed on or after June 6, 2017, involving one or more of the following:

(1) bribery;

(2) embezzlement, extortion, or other theft of public money;

(3) perjury;

(4) coercion of public servant or voter;

(5) tampering with governmental record;

(6) misuse of official information;

(7) conspiracy or the attempt to commit any of the offenses described in paragraphs (1) - (6) of this subsection;

(8) abuse of official capacity; or

(9) as otherwise defined in Government Code, § 810.003(a)(2).

(d) A participating municipality must provide written notice to the system of the conviction of any member or retiree of the system who was elected or appointed to an elected office of the participating municipality and who is convicted of a qualifying felony committed while in elected office and arising directly from the official duties of that elected office. A participating municipality must provide the notice no later than the 30th day after the conviction of the member. The notice must:

(1) clearly state the convicted person's name, social security number or other identifying information, title of elected office, date of conviction, court of jurisdiction, case number, qualifying felony violation, date of offense, and an explanation of the connection of the qualifying felony to the person's performance of his or her official duties;

(2) include a copy of the official conviction of the person entered by the court, including the judge's affirmative finding of fact that the person is an elected or appointed holder of an elected office of the participating municipality who committed a qualifying felony while in office and in the course of performing official duties of that elected office; and

(3) if applicable, include a copy of the court's award of all or a portion of the convicted person's service retirement annuity to the person's spouse pursuant to a just and right division upon the person's conviction or pursuant to a written agreement between the spouses as provided by Subchapter B, Chapter 4, Family Code, entered into prior to the person's commission of the offense.

(e) Notwithstanding subsection (d)(3) of this section, for the system to administer any court order as described in that paragraph, the order also must meet the requirements for a qualified domestic relations order under Chapter 804, Government Code, and Chapter 129 of this title ("QDRO").

(f) Upon receipt of notice as provided in Government Code § 810.003 of a conviction of a qualifying felony, substantially similar to the notice required from a participating municipality, the system shall suspend payments of a service retirement annuity to a retiree who the system determines is ineligible to receive the annuity under Government Code § 810.003(c) effective the month following the month in which the system receives such notice.

(g) Subject to any applicable QDRO, a member who is ineligible to receive a service retirement annuity under Government Code § 810.003(c) is entitled to a refund of the member's accumulated contributions, including interest earned on those accumulated contributions, subject to the convicted person applying for withdrawal of the accumulated contributions and interest in accordance with the Act and system rules. Upon such withdrawal, the person no longer shall be a member in the system in accordance with Government Code § 852.104. A retiree whose service retirement annuity payments are suspended in accordance with Government Code § 810.003(d) is not entitled to any refund or withdrawal from the system; provided, however, that:

(1) the deceased retiree's beneficiary(ies), his or her estate or the estate of the deceased retiree whose service retirement annuity payments were suspended in accordance with Government Code § 810.003(d) may receive a refund of unrecovered accumulated contributions in accordance with Government Code § 854.502, to the extent that section applies; and

(2) if a retiree also has a member account pursuant to Government Code § 852.108 or § 852.109, the person is entitled to a refund of such member account under this subsection if the person has not applied for retirement of such member account and is not receiving a retirement annuity for that member account at the time TMRS receives notice of the conviction.

(h) System benefits payable to an alternate payee under a QDRO pursuant to Government Code Chapter 804 or Government Code § 810.003(h) are not affected by:

(1) a member's ineligibility to receive a service retirement annuity pursuant to Government Code § 810.003(c), except to the extent that the alternate payee of a member who receives a refund of accumulated contributions and interest is eligible only for a refund of accumulated contributions and interest as provided in the QDRO; or

(2) suspension of a retiree's service retirement annuity payments pursuant to Government Code § 810.003(d) unless the alternate payee of a retiree convicted of a qualifying felony also is convicted of a felony as a party to the offense as defined by § 7.01, Penal Code, or of another qualifying offense arising out of the same criminal episode as defined by § 3.01, Penal Code, in which case the alternate payee forfeits the retiree's service retirement annuity and service retirement contributions to the same extent as the member.

(i) Upon receipt of a notice of a judgment overturning the conviction of, or determining that the requirements for innocence under Civil Practice and Remedies Code § 103.001(a)(2) are met for a person previously convicted for a qualifying felony described in Government Code § 810.003, if the person was a retiree at the time of the conviction, the person is entitled to receive a lump sum amount equal to the accrued total of payments and interest earned on the payments withheld during the suspension period and may resume service retirement annuity payments. Under this subsection, "interest earned on the payments withheld during the suspension period" shall mean interest that is applied annually, without compounding, at the same rate set by the Board as the discount rate for determining the present value of future cash flows in developing the annuity purchase rate pursuant to §855.110 of the Act.

Notes

34 Tex. Admin. Code § 123.14

Adopted by Texas Register, Volume 45, Number 46, November 13, 2020, TexReg 8172, eff. 11/19/2020