Mrs. Marie Hudson
Fireman's Pension Commissioner
702 Tribune Building
Austin, Texas
Opinion No. ~~-726
Re: Whether a Fire Department
joining the State Fire-
men's Pension System must
have 100% participation
and If an age limit can
be set for individual
firemen to participate
Dear Mrs. Hudson: in the Pension Program.
You have requested an opinion as to whether a Fire
Department joining the State Firemen's Pension and Retire-
ment Program is required to have all firemen participate
in the program.
House Bill 358, Acts of the 45th Legislature, Regular
Session, 1937, Chapter 125, page 229, codified as Section 10,
Article 6243e of Vernon's Civil Statutes, allowed the individ-
ual fireman to make his choice as to his participation in the
Pension and Retirement Program.
"Sec. 10. Withln sixty (60) days
after this Act takes effect each fully
paid fireman and each part paid fireman
whose salary or compensation is Fifty
Dollars ($50) or more per month and each
part paid,fireman whose salary or compen-
sation is less than Fifty Dollars ($50)
per month and each active voluntee fire-
man in the employ of any such city or
town or enrolled in the fire department
of any such city or town, who desires him-
self or his beneficiaries, as hereinafter
named, to participate in such Fund or the
benefits therefrom as by this Act provided,
shall file with the Secretary-Treasurer of
Mrs. Marie Hudson, page 2 (~~-726)
the Board of Firemen's Relief and Retirement
Fund Trustees of that city or town a state-
ment in writing under oath that he desires
to partic!.patein the benefits from such
Fund, e . .'
Section 12 of House Bill 68, Acts of the 55th Legisla-
ture, Chapter 275, Page 617, codified as Section lOB, Article
6243e of Vernon's Civil Statutes, amended Section 10 of Article
624je. This amendment recognized the privilege of a fireman
not to participate in the program if he was a member of a de-
partment which had an existing retirement program at the time
this amendment took effect.
"Any fireman who is a member of a depart-
ment which had an existing Firemen's Relief
and Retirement Fund prior to the effective
date of this amending Act and who has elected
and does elect not to participate in such Fund,
shall not be liable for any salary deduction
provided by this Act; but each person who shall
hereafter j,oina fully paid fire department
which then has a Relief and Retirement Fund
shall file a statement in writing, in the man-
ner hereinabove provided by this section, upon
joining such department and shall thereafter
participate In the contributions to and bene-
fits from such Fund, as provided by this Act,
unless such new fireman shall be rejected or
excused therefrom by the Board of Trustees
upon a determination by the Board that such
person is not of sound health. . o ."
It is our opinion that all firemen, who are members
of a fully paid fire department, must participate in the Fire-
men's Relief and Retirement Fund unless they, as individual
members of a fire department with a retirement program, had
elected not to participate in that retirement program before
Section 10-B, Article 6423e, Vernon's Civil Statutes, became
effective.
Your second question as to whether an age limit can be
set precluding firemen over the age of forty (40) from parti-
cipating in the Firemen's Relief and Retirement Program is
- .
Mrs. Marie Hudson, page 3 (~-7%)
answered by Section 10-B of Article 6243e, as set out above.
Under Section 10-B, an individual who joins a fully paid fire
department, covered by this Act, with a Relief and Retirement
Program, is required to participate in the Program unless such
fireman is rejected by the Board of Trustees for the reason
set out in the statute.
In our opinion this would not allow a fire department
to exercise its discretion in excluding individuals on the basis
of age.
Section 10-B of Article 6243e of Vernon's Civil Statutes
restricts its coverage to fully paid fire departments which
necessarily restricts the coverage of this opinion to fully
paid fire departments, although as indicated a member of any
fire department with a retirement system in effect at the time
this statute went into effect who now works for a fully paid
fire department participating or that is now electing to parti-
cipate in the Firemen's Pension and Retirement Fund has the
option as set forth In this opinion.
SUMMARY
All firemen, who are members of a fully
paid fire department, and are covered by
this Act, must participate in the Fire-
men's Relief and Retirement %nd estab-
lished under Section 10-B of Article c243e,
Vernon's Civil Statutes, unless they, ds
individuals, elected not to participatn
in a re'1remer.tfund available to them
through their fire department prior to
May 22, 1957.
A fire department cannotexclude an indi-
vidual who joins that department from
participating in the Firemen's Relief and
Retirement Fund on the basis of age.
Yours very truly,
WILL WILSON
Attorney General of Texas
JCS:me:mfh
By
525 :;i&
Assist&t
. .
Mrs. Marie Hudson, page 4 (WW-726)
APPROVED:
OPINION COMMITTEE
John Reeves, Chairman
Willlam E. Allen
L. P. Lollar
Arthur J. Sandlin
REVIEWED FOR THE ATTORWY GENERAL
BY: W. V. Geppert