The Attorney General of Texas
January 3, 1980
MARK WHITE
Attorney General
Honorable Hal II. Hood Opinion No. Ml+ 12 2
Firemen’s Pension Commissioner
503-F Sam Houston State Office Bldg. Re: Whether a retired volunteer
Austin, Texas 78701 fireman may continue to serve.
Dear Commissioner Hood:
You have requested our opinion regarding whether a volunteer fireman
who is receiving retirement pay may continue to serve as a volunteer
fireman and, if so, whether he would have a claim for disability benefits
against the Volunteer Fire Fighters’ Relief and Retirement Fund in the event
of his disability.
In reading article 6243e.3, V.T.C.S., entitled “Volunteer Fire Fighters’
Relief and Retirement Fund,” no provision can be found which expressly
prohibits a retired volunteer fireman from continuing to serve as a member
of a volunteer fire department
Section 4(a) of this statute states: “A member fire fighter must elect
between retirement or disability benefits if eligible for both.”
If a retired volunteer fireman continues to serve his department while
receiving retirement pay and become disabled, according to the provisions of
section 4(a), he must choose between these two benefits. This presumably
would not cause sn actuarial problem since the governing body under whose
jurisdiction the fire department exists would be required to contribute the
minimum $12 per month into the fund for each month of qualified service by
the retired fireman, see article 6243e.3 S 2(c). This contribution should
satisfy the actuarial nee8 of the fund should a disability occur.
Section l(1) defines “Qualified service” as follows:
(1) ‘Qualified service’ means f&-fighting service
rendered without monetary remuneration while a
member in good standing of a fire-fighting unit that
has no fewer than 10 active members, and a minimum
of two drills each month, each drill two hours long,
and each active member present at 60 percent of the
drills and 25 percent of the ties, or fire-fighting
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Honorable Hal H. Hood - Page Two (Mw-122)
service rendered without monetary remuneration while a member
of a fire-fighting unit which includes paid fire fighters. Absence
caused by military duty does not affect qualified service.
There is nothing in the definition of “qualified service” under section l(1) which
indicates that service by a fireman drawing retirement pay cannot be considered
“qualified service.” A volunteer fireman’s receipt of retirement pay does not constitute
“monetary remuneration” since he does not receive such pay as a result of his current
services to the department.
In the event a volunteer fireman dies, if his death was not a result of his
performance of duties as a fire fighter, the lump-sum benefit would beno different if he
were active or retired, therefore, a retired fireman’s status as an active member in this
type of situation would have no effect on the fund
If, however, his death were caused by his duties as an active member of his
department, his survivors would receive a lump-sum payment of no less than $5,000, and a
retired fireman’s status as an active member in this instance would normally make a
difference as to his survivors’ benefits. If the $5,000 lump-sum benefit is greater than
what the retired fieman’s survivors would receive if he had not been in active service, the
additional drain on the fund which this would create would here again be compensated for
by the fact that the governing body had made monthly contributions into the fund and such
contributions have been determined by the actuaries to be sufficient to cover this
contingency.
In addition to lump-sum death benefits, section 5(c) and Cd) provide for monthly
survivor benefits as follows:
(c) In addition to the lump-sum death benefit, the spouse and
dependents shall receive in equal shares a survivor’s benefit equal
to two-thirds of the disability benefit the decedent would have
received at date of death. As long as both spouse and one or more
dependents survive, an additional one-third of the disability benefit
the decedent would have received at date of death shall be paid to
the dependents in equal shares.
(d) If a member fire fighter dies after retirement, the surviving
spouse shall receive two-thirds of the monthly pension the decedent
was receiving at the time of death.
As can be seen, these benefits are significantly different depending on whether the
fieman is retired or active. Since, in the situation before us, the fireman would be both
retired and active, according to the underlying principle of section 4(a) the surviv-
must ch= between the benefit based on the retirement pension or the benefit based on
the disability benefit.
p- 382
Honorable Hal H. Hood - Page Three (MW-122)
SUMMARY
A retired volunteer fire-fighter may continue to serve his
department as an active member and does have a legal claim
against the volunteer Fire Fighters’ Relief and Retirement Fund in
the event of his disability or death. If the fire-fighter is eligible
for both disability and retirement benefits, he must elect between
them.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Eva King Loutzenhiser
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Bob Gammage
Susan Garrison
Rick Gilpin
Les King
Eva King Loutzenhiser
P. 383