| (a) Definitions.
(1) Eligible Member--An employee of a participating
municipality who is or would be considered to be employed in a position
eligible for membership but who leaves employment with that municipality
to perform service in the uniformed services; whose employer was notified
of the obligation or intention of the employee to perform service
in the uniformed services; who is released or discharged from such
service on or after December 12, 1994, under honorable conditions;
whose cumulative period of service in the uniformed services with
respect to that participating municipality does not exceed five years
not including periods excluded under 38 USC §4312(c); who applies
for reemployment with that participating municipality within 90 days
of release or discharge from the uniformed services, or after recovery
from an illness or injury incurred in, or aggravated during, the performance
of service in the uniformed services (but such recovery period does
not exceed two years); and who is reemployed by the participating
municipality.
(2) Uniformed Services--The Armed Forces of the United
States of America; the Army National Guard and the Air National Guard
when engaged in active duty for training, inactive duty training,
or full-time National Guard duty; the commissioned corps of the Public
Health Service; and any other category of persons designated by the
President in time of war or national emergency.
(3) Service in the Uniformed Services--The performance
of duty on a voluntary or involuntary basis in a uniformed service
under competent authority and includes active duty, active duty for
training, inactive duty for training, National Guard duty under Federal
statute, and a period for which an employee is absent from a position
of employment for the purpose of an examination of to determine the
fitness of the employee to perform such duty.
(4) Participating Municipality--A municipality as defined
in §851.001(9) of the Act (including entities having the status
of a municipality under Government Code, §852.005 of the Act)
that is participating in the Texas Municipal Retirement System at
the time the eligible member leaves employment with the municipality
to perform service in the uniformed services; or a municipality that
is not participating in the System at the time the employee leaves
employment with the municipality to perform service in the uniformed
services but commences participating during the period of the employee's
performance of duty in a uniformed service.
(b) Certification of Eligibility by Participating Municipality.
An eligible member will be credited with current service in accordance
with the Uniformed Services Employment and Reemployment Rights Act
(the USERRA) (38 USC §4301 et seq.) upon certification by the
participating municipality on forms provided by the system:
(1) that the eligible member's reemployment application
is timely;
(2) that the eligible member has not exceeded the service
limitations set forth in the USERRA;
(3) that the eligible member was not released or discharged
from the uniformed service under other than honorable conditions;
(4) the period in which the eligible member performed
service in the uniformed services;
(5) that the eligible member did not receive service
credit for the period of uniformed service;
(6) the estimated compensation that the eligible member
would have received from the municipality but for the period of service
in the uniformed services; and
(7) the eligible member's date of reemployment with
the participating municipality.
(c) Crediting of Current Service under the USERRA.
(1) An eligible member shall be credited with one month
of current service credit for each month or part of a month in which:
(A) the eligible member performed service in the uniformed
services; and
(B) a person who begins military service prior to the
16th day of a calendar month, or terminates military service after
the 15th day of a calendar month is considered to have served a full
month; and
(C) the participating municipality participated in
the system.
(2) An eligible member may, but is not required to,
deposit with the system any or all employee contributions that would
have been deposited to his/her individual account for each period
during which he/she performed service in the uniformed services if
the eligible member had been employed with the participating municipality
during the period of uniformed service. Deposits under this provision
are subject to the following rules:
(A) The total deposits may not exceed the amount the
eligible member would have been required to contribute had the eligible
member remained continuously employed by the participating municipality
throughout the period of service in the uniformed services.
(B) The compensation upon which allowable deposits
will be calculated is the estimated compensation that the eligible
member would have received from the participating municipality but
for the period of service in the uniformed services.
(C) For purposes of determining the amount of current
service credit and allowable monetary deposits, months of uniformed
service and estimated compensation shall be calculated from the later
of the date the eligible member entered service in the uniformed services
or the date the participating municipality commenced participation
in the system.
(D) Within the allowable period for making deposits
and subject to the maximum total amount of deposits, an eligible member
may make deposits at any time and in any amount.
(E) Deposits must be paid directly to the system by
the eligible member or by the rollover or transfer of funds in accordance
with the provisions of §127.6 of this title (relating to the
Acceptance of Rollovers and Transfers). Optional deposits made under
this section shall retain the same after-tax or pre-tax characterization
that the funds have when deposited and may not be returned until the
member terminates from all covered employment in this system.
(F) Deposits will be allocated prospective interest
only, and in the same manner as interest is allocated on member contributions
to individual accounts.
(G) Deposits, when received by the system, shall be
credited to the eligible person's individual account and shall be
considered to be contributions attributable to the months of uniformed
service performed beginning with the earliest month of uniformed service.
(H) For vesting and funding purposes, current service
credit, and any monetary credit arising from voluntary deposits, shall
be considered as having been earned through service with the reemploying
municipality and as having been credited during the period of uniformed
service.
(I) An eligible member receiving service credit for
a specific month pursuant to §853.506 may not receive service
credit for the same month under any other provision of the Act.
(J) Deposits must be made during a time period starting
with the date of an eligible member's reemployment with the participating
municipality and continuing for up to three (3) times the length of
the member's immediate past period of uniformed service, with the
repayment period not to exceed five (5) years. Deposits may be made
only during this period and while the member is employed with the
post-service reemploying municipality.
(d) Death While on Military Leave. Effective for deaths
occurring on or after January 1, 2007, if a member dies while performing
qualified military service, the beneficiaries of the member are entitled
to any additional benefits (other than benefit accruals relating to
the period of qualified military service) provided under the Texas
Municipal Retirement System tax-qualified pension plan as if the member
had resumed employment and then died, in accordance with §401(a)(37)
of the Internal Revenue Code. "Qualified military service" means any
service in the uniformed service (as defined in Chapter 43 of Title
38 of the United States Code) by any individual if such individual
is entitled to reemployment rights under such Chapter with respect
to such service.
(e) Military Differential Pay. For purposes of the
Texas Municipal Retirement System, prior to and on and after January
1, 2009, compensation as defined in §851.001(6) of the Act includes
payments to an individual by a participating municipality who does
not currently perform services for the participating municipality
by reason of qualified military service as defined in subsection (d)
of this section made in accordance with the participating municipality's
current policy with regard to such qualified military service (hereafter
referred to as "military differential pay"). For purposes of the Internal
Revenue Code as it applies to the Texas Municipal Retirement System
tax-qualified pension plan, effective January 1, 2009, a member receiving
military differential pay shall be treated as an employee of the employer
making the payment and the military differential pay shall be treated
as compensation.
(f) Construction. This section is intended to comply
with USERRA and Internal Revenue Code §401(a)(37) and §414(u)
and shall be construed in a manner consistent with those provisions.
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