TIElIE ATTO
OF TE%.A
The Honorable Hal Hood Opinion No. H- 179
Firemen’s Pension Commissioner
503-F Sam Houston St. Office Bldg Re: Where city refuses to
Austin, Texas 78701 match firemen’s increased
contribution to retirement
Dear Commissioner Hood: program
The facts you have submitted to us indicate that the firemen of Beaumont
have voted to raise their contributions to the Firemen’s Relief and Retirement
Fund from 6% per month of their salary to 9%. The city, on the other hand,
has refused to match their contribution on the ground that there is an apparent
conflict between $ $ IOA and IOA-2 of Article 6243e, Vernon’s Texas Civil
Statutes, the Act creating the Firemen’s Relief Pension Fund. The Article was
amended by Acts 1971, 62nd Leg., p. 851, ch. 101, which reenacted 5 5 IOA and
lOA- to enlarge their scope. As so amended the portions of the sections which
are in conflict are:
“Section LOA. (a) In all cities having fully paid
firemen where Firemen’s Relief and Retirement Funds
now exist or shall be created under the provisions of
this Act and having a population of less than two hundred
ten thousand (210, 000), inhabitants according to the pre-
ceding Federal Census, the city or the governing body of
the city shall deduct an amount equal to no less than three
per cent (3%) nor more than six per cent (6%) from the
monthly salary or compensation of each participating mem-
ber fireman. ”
“Section IOA--2. (a) In all cities having fully paid
firemen’ where Firemen’s Relief and Retirement Funds
now exist or shall be created under the provisions of this
Act and having a population of less than two hundred ten
thousand (210,000), according to the last preceding Federal
p. 817
The Honorable Hal Hood, page 2 (H-179)
Census, the city or the governing body of the city shall
deduct an amount equal to no less than three per cent
(3%) nor more than nine per cent (9%) from the monthly
salary or compensation of each participating member
fireman; provided, however, that the totalof the percen-
tage contributed by such city to the Fund, plus the per-
centage, if any, contributed by such city under the Federal
Social Security Act, shall not exceed:
(1) nine per cent (9%) of the monthly salary, or
(2) the total percentage contributed to the retirement
of other full time employees of such city under the Texas
Municipal Retirement System, or any other retirement
system, whichever is greater. ” (Emphasis added)
The population of Beaumont according to the 1970 Federal Census was
slightly less than 116,000. Therefore, it is subject to these provisions.
The cardinal rule of interpreting statutes is to “Look diligently for the
intention of the Legislature. ” Article 10, Vernon’s Texas Civil Statutes.
Where, as in this case, two parts of the same statute appear to be in irrecon-
cilable conflict, the part or provision later in position prevai:ls as the latest
expression of the legislative will, and has the effect of repealing the other
part insofar as there is irreconcilable conflict. 53 Tex. Jur. 2d, Statutes,
$101. In the case of Stevens V. State, 159 S. W. 505, 507 (Tex. Crim. 1913)
the court cited Parshall v. State, 138 S. W. 759, 767 (Tex. Crim. 1911) and
quoted from it as follows:
“The different sections or provisions of the same
statute or Code should be so construed as to harmonize
and give effect to each, but, if there is an irreconcilable
conflict, Me later in position prevails. ”
Since both $lOA (a) and $ IOA-2(a) of Article 6243e were re-adopted in the
1971 Act, the only basis to give one of them precedence over the other is their
relative position in the Act. We therefore hold that, as applicable to cities of
less than 210,000, Article 6243e, V. T. C.S., should be read as authorizing the
deduction of contributions from the monthly salary of each participating member
fireman of not less than 3% nor more than 9%. This does -not necessarily mean
p. 818
The Honorable Hal Hood, page 3 (H-179)
that a city, whose firemen have voted to make the maximum contribution ,
must likewise make a contribution in that amount. Section LOA-2(c), the
mandatory provisions of the statute, require the city to contribute only an
amount equal to the sum paid by salary deductions of members but, under
no circumstances shall the total of the percentage contributed by the city
plus the contribution to the Federal Social Security Act exceed 9% of the
member’s monthly salary or the total percentage contributed to the retire-
ment of other full-time employees of the city under the Texas Municipal
Retirement System, whichever is greater. Thus, there are definite limit-
ations on the contribution to be made by the city and the upper limit may be
either more or less than 9% depending upon the facts which we do not have
before us.
SUMMARY
Because $lOA-2 of Article 6243e, Vernon’s Texas
Civil Statutes, is later in position to 5 lOA of the same
Article, the former section controls and the maximum
contribution which may be made to the Firemen’s Relief
and Retirement Fund by a fireman member is 9% rather
than 6%. Cities are required to make a correspondingly
higher contribution subject to the limitations imposed by
the statute.
n u Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 819