The Attorney General’ of Texas
December 29, 1983
JIM MATTOX
Attorney General
Honorable Lie F. Jacks& Opinion No. ~~-108
Supreme Court Building Chairman
P. 0. Box 12549 Committee on Employment Practices Re: Whether the provisions
Austin, TX. 79711. 2548
Texas House of Representatives of article 6243e. V.T.C.S..
5121475-2501
Telex 9101S74-1,387
P. 0. Box 2910 setting a maximum age of 35
Telecopier 512,475.0266 Austin, Texas 78769 for beginning eligibility in
municipal fire department
pension funds violate federal
714 Jackson, Suite 700
Dallas, TX. 75202.4506
age discrimination statute
2141742-8944
4824 Alberta Ave.. Suite 180 You have requested our opinion on whether certain provisions of
El Paso, TX. 79905.2793
article 6243e, V.T.C.S., setting a ~tiximum age of 35 for beginning
915/533-3484
eligibility in municipal fir&department pension funds, violate the
federal age discrimination statute, which protects oersons sees 40 to
P
‘001 Texas, Suite 700 70. See 29 U.S.C. $623, et seq. Specifically. you-point to-sections
Houston, TX. 77002.3111 lOA( 1+2(f),. and 10B of article 6243e.
713/223-5886
Subsection 623(a)(l) of the Age Discrimihation'in Employment Act
806 Broadway. Suite 312
makes it unlawful for an employer
Lubbock, TX. 79401.3479
0061747-5230 to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any
4309 N. Tenth, Suite S
individual with respect to his compensation,
McAllen, TX. 79501.1685 terms, conditions, or privileges of employment,
5121682-4547 because of such individual's age.
Article 6243e, V.T.C.S., which establishes the "Firemen's Relief and
200 Main Plaza, Suite 400
San Antonio. TX. 78205.2797
Retirement Fund," violates the federal provision, it is suggested,
512/225-4191 because it establishes a maximum age of 35 years for eligibility to
fund membership and makes membership In the fund a condition of
employment, thus establishing a maximum entry age for hiring purposes.
An Equal Opportunity/
Affirmative Action Employer
We do not agree. Section 10B of article 6243e specifies that no
person shall be eligible to begin participation in a fund on account
of prior service who was more than 35 years of age "at the time he
began his service as a fireman for the first time." Sections lOA
and lOA-2(f), which concern cities of different sizes, both state the
following:
Each person who shall hereafter become a fireman
in any city which has a Firemen's Relief and
Retirement -Fund to which he is eligible for
membership, shall become a member of such Fund as
p. 454
Honorable Lee F. Jackson - Page 2 (JM-108)
a condition of his appointment . . . provided,
however, that no person shall be eligible to
membership in any such Fund who is ,more than
thirty-five (35) years of age at the time he first
enters service as a fireman . . . . (Emphasis
added).
The language emphasized above makes it obvious that only those
persons eligible to participate in the fund must do so as a condition
of employment, and that the hiring of persons not eligible for
membership therein because of their age ("at the time he first enters
service as a fireman") IS anticipated.
Aside from other reasons why the congressional enactment might
not apply, subsection 623(f)(2) of the federal law expressly states
that it shall not be unlawful for an employer
to observe the terms of... any bona fide
employee benefit plan such as a retirement,
pension, or insurance plan, which is not a
subterfuge to evade the purposes of this chapter,
except that no such employee benefit plan shall
excuse the failure to hire any individual . . . .
In Alford v. City of Lubbock, 664 F.2d 1263 (5th Cir. 1982).
cert. denied, 456 U.S. 975 (1982), the court held that a provision
found in article 6243h. V.T.C.S. (repealed), establishing the Texas
Municipal Retirement System -- a provision comparable in all respects
to the article 6243e passages -- was not in any way violative of the
federal age discrimination law.
We advise that sections lOA( lOA-2(f), and 10B of article
6243e, V.T.C.S., are not in violation of the federal am
discrimination act, 29 U.S.C. 623, by reason of setting a maximum age
of 35 years for beginning eligibility in a municipal fire department
pension fund. Other questions need not be addressed.
SUMMARY
Sections lOA( lOA-2(f), and 10B of article
6243e. V.T.C.S., are not in violation of the
Federal Age Discrimination Act, 29 U.S.C. 623, by
reason of setting a maximum age of 35 years for
beginning eligibility in a municipal fire
department pension fund.
d-h Very truly your
JIM
m
MATTOX
Attorney General of Texas
p. 455
.
Honorable Lee F. Jackson - Page 3 (JM-108)
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood
P. 456