ORNEY GENERAL
TEXAS
September 22, 1958
Mrs. Marie Hudson
Firemen's Pension Commissioner
702 Tribune Building
Austin, Texas
Opinion No. WW-501
Re : The maximum benefit provided
for the beneficiaries of a
fireman who was covered at the
time of his death by the pro-
visions of the Firemen's Pen-
sion Law, said death not being
caused by the performance of
Dear Mrs. Hudson: his duties as a fireman.
We have your request for an opinion. You desire to
know what is the measure of the maximum benefit provided for
the beneficiaries of a f,iremanwho was covered at the time of
his death by the provisions of The Firemen's Pension Law, said
death not being caused by the performance of his duties as a
fireman.
Section 7A of Article 6243e of Vernon's Civil Stat-
utes, provides a pension allowance for death or disability
from cause not resulting from performance of duties and reads
2s follows:
Whenever a person serving as an active
fireman duly enrolled in any regularly active
fire department in any city or town in the
State having a population or less than five
hundred thousand (500,000) according to the
last preceding Federal Census, which city or
town is now within or may hereafter come within
the provisions of this Act, shall die or become
disabled from any cause other than a disability
acquired in the performance of his duty as a
fireman, a pension allowance shall be paid to
the widow or fireman. The monthly pension
allowance shall be computed as follows: rive
per cent (5%) of the total amount the individ-
ual fireman or widow would have been entitled
to receive under Section 7 or Section 12 had
MIS. Marie Hudson, page 2 (WW-501)
such death or disability occurred as the result
of such fireman's being incapacitated or killed
while in and/or in consequence of the perform-
ance of his duty as a fireman shall be allowed
for each year of participation in the relief and
retirement fund, provided that such allowance
shall not be computed on the basis of more than
twenty (20) years. In no event, however, shall
such fireman or widow receive an amount less than
Fifty Dollars ($50) per month. If such fireman
be a volunteer fireman and thereby receiving no
salary, the amount so ordered paid, if all of
the other conditions have been met, shall be not
less than Twelve Dollars and Fifty Cents ($12.50)
per month.
"If any such fireman who is a member of a
'full paid' fire department shall die from any
cause not growing out of and not in consequence
of his duty as a fireman and shall leave surviv-
ing him a child or children under the age of
eighteen (18) years or a dependent parent, said
Board of Trustees shall order paid a monthly pen-
sion allowance as follows: (a) to the guardian
of each child the sum of Twenty Dollars ($20) per
month until such child reaches the age of eight-
een (18) years; (b) in the event the widow dies
after being entitled to her allowance as herein
provided or in the event there be no widow to re-
ceive an allowance, then the amount to be paid
to the guardian of any dependent minor child or
children under the age of eighteen (18) years
shall be Forty Dollars ($40) per month for each
such dependent minor child; and (c) to the depend-
ent parent only in case no widow or child is en-
titled to allowance, the amount the widow would
have received to be paid to but one (1) parent
and such parent to be determined by the Board of
Trustees; provided however.that the total allow-
ance to be aaid all beneficiaries or deoendents
as herein provided shall not exceed the month&
allowance to be caid the tensioner had he contin-
ued to live or be retired on allowance at the
date of his death; and further provided that if
such amount be insufficient to pay the !ull sched-
ule of benefits as herein provided, such benefits
shall be prorated. Allowance or benefits payable
to any minor child shall :ease when such child
becomes eighteen (18) years of age or marries.
Mrs. Marie Hudson, page 3 @J-w-501)
"Provided, however, that the provisions
of.this Section shall not apply if the death
or disability of the fireman was caused while
such fireman was gainfully employed by someone
other than the respective fire department for
which he was employed or contributed his serv-
ices.
"The provisions of this Section as amended
shall be automatically applicable to any relief
and retirement fund in which such Section was
included by majority vote of the members prior
to the effective date of this amending Act, pro-
vided however that the paragraph providing bene-
fits for surviving beneficiaries of a member of
a,,'full paid' fire department shall only be ap-
plicable to beneficiaries of a member of a 'full
paid' fire department. Provided further however,
that the provisions of this Section shall not be
applicable to any particular relief and retire-
ment fund in which such Section was not included
prior to the effective date of this amending Act
until after an election has been held and the
majority of the participating members of that
respective fund have voted to include the provi-
sions contained in this Section within the Relief
and Retirement Fund. At such election the effec-
tive date of these provisions shall also be set.
Added Acts 1953, 53rd Leg., p* 352, ch. 82, § 3,
;s,6a;endedActs 1957, 55th Leg., pe 617, ch. 275,
0 (Emphasis added).
Section 12 of Article 6243e, Vernon's~Civil Statutes,
governs the amount of allowances to beneficiaries of deceased
members, and is as follows:
"If any member of any department in any
,city or town having a population 0r less than
rive hundred thousand (500,000) according to the
last .precedingFederal Census, which city or town
is now within or may hereafter come within the
provisions of this Act, who has been retired on
allowance because of length of service or disabil-
ity, shall thereafter die from any cause whatso-
or if while in service any member shall die
%?i'any cause growing,out 01 and/or in consequence
of the performance of his duty; or shall die from
any cause whatsoever after he has become entitled
to'an allowance or pension certificate and shall
Mrs. Marie Hudson, page 4 w+501)
leave surviving a widow, a child or children un-
der the age of eighteen (18) years or a depend-
ent parent, said Board of Trustees shall order
paid a monthly allowance as follows: (a) to the
widow, so long as she remain a widow and provided
she shall have married such member prior to his
retirement, a sum equal to one-third (l/3) of the
average monthly salary of the deceased at the
time of his retirement on allowance or death; (b)
to the guardian of each child until such child
reaches the age of eighteen (18) years, the sum
of Six Dollars ($6) per month for part paid or
volunteer Departments, and the sum of Twenty Dol-
lars ($20) per month for fully paid Departments;
(c) in the event the widow dies after being en-
titled to her allowance as herein provided, or in
the event there be no widow to receive an allow-
ance, then the amount to be paid to the guardian
of any dependent minor child or children under the
age of eighteen (18) years shall be Twelve Dollars
($12) per month for each such dependent minor child
for part-paid or volunteer Departments, and the
sum of Forty Dollars ($40) per month for each such
dependent minor child for fully paid Departments;
(d) to the dependent parent only in case no widow
or child is entitled to allowance, the amount the
widow would have received to be paid to but one
(1) parent and such parent to be determined by the
Board of Trustees; provided however, that the total
allowance to be paid all beneficiaries or deuend-
ents as herein orovided shall not exceed the monthlv
allowance to be paid the pensioner had he continued
to live or be retired on allowance at the date of
his death; and further provided, that if such amount
be insufficient to pay the full schedule of bene-
fits as herein provided, such benefits shall be pro-
rated. Allowance or benefits payable to any minor
child shall cease when such child becomes eighteen
(18) years of age or marries. As amended Acts 1955,
54th Leg. p. 461, ch. 127 g 2; Acts 1957, 55th
wz., p. b17, ch. 275, 3 13.11 (Emphasis added)
From the foregoing you are advised that when a fire-
man dies who was covered at the time of his death by the pro-
visions of the Firemen's Pension Law and said death was not
caused by the performance of his duties as a fireman the total
pension allowance which may be paid his beneficiariei cannot
exceed the monthly allowance to be paid the pensioner had he
Mrs. &rie Hudson, page 5 (WW-501)
continued to live or be retired on allowance at the date of
his death. The actual date of death is the time to be used
in the calculation.
When a fireman dies who at the time of his
death was covered by the provisions of the
Firemen's Pension Law, and the death was not
caused by the performance of his duties as a fire-
man, the total pension allowance payable to his
beneficiaries cannot exceed the monthly allowance
had he continued to live or be retired on allow-
ance at the date of his death;~
Yours very truly,
WILL WILSON
Attorney General of Texas
GPB:JH
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APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
Raymond V. Loftin, Jr.
Jack Price
John Reeves
REVIEWED FOR THE ATTORNEY GENERAL
BY: W. V. Geppert