Untitled Texas Attorney General Opinion ( 2000 )

OPFlCE OF THE ATTORNEY GENERAL. STATE Of TEXAS
JOHN CORNYN
November 27.2000
The Honorable Ken Armbrister Opinion No. JC-03 10
Chair, Committee on Criminal Justice
Texas State Senate Re: Whether the municipal employee retirement
P.O. Box 12068 fund of the City of Fort Worth is a “fire tighter’s
Austin, Texas 7871 l-2068 or police officer’s pension fund” under section
143.073 of the Local Government Code, for
purposes of compensating a tire fighter or police
officer absent for a line of duty injury or illness
(RQ-0256-E)
Dear Senator Armbrister:
You inquire about the construction of section 143.073 of the Local Government Code, a
provisionofthe fire fighters’ andpoliceofticers’ civil service law. Section 143.073 addresses leaves
of absence for fire fighters or police officers who are injured or become ill in the line of duty. Under
circumstances defined in subsection 143.073(b) of the Local Government Code, a fire fighter or
police officer may retire on pension until able to return to duty if “the municipality has a fire
fighter’s or police officer’s pension fund.” You ask whether this benefit is available in a city such
as Fort Worth, which has a general pension fund covering all city employees. We conclude that this
benefit is not available to fire fighters and police officers employed by the City of Fort Worth.
The City ofFort Worth (the “City”) has adopted chapter 143 ofthe Local Government Code,’
which provides a civil service system for fire fighters and police officers. Pursuant to section
143.073, “[a] municipality shall provide to a fire fighter or police officer a leave of absence for an
illness or injury related to the person’s line of duty.” TEX. LOC. GOV’T CODE ANN. 5 143.073(a)
(Vernon 1999). The leave is with full pay for a period commensurate with the nature of the illness
or injury, and, if necessary, will continue for at least one year. Id. Subsections 143.073(b) and (c)
provide as follows:
(b) At the end of the one-year period, the municipality’s
governing body may extend the line of duty illness or injury leave at
till or reduced pay. If the fire tighter’s or police officer’s salary is
reduced below 60 percent of the person’s regular monthly salary and
‘Brief from Laetitia Coleman Brown, Assistant Fort Worth City Attorney, to Chair, Opinion Committee, Office
of the Attorney General (Aug. 25,200O) (on file with Opinion Committee).
The Honorable Ken Armbrister - Page 2 (JC-0310)
the municipality has a fire fighter’s or police officer’s pension fund,
the person may retire on pension until able to return to duty.
(c) Ifpension benefits are not available to afirefighter orpolice
officer who is temporarily disabled by a line ofduty injury or illness
and if the year at full pay and any extensions granted by the
governing body have expired, the tire fighter or police officer may
use accumulated sick leave, vacation time, and other accrued benefits
before the person is placed on temporary leave.
Id. 5 143.073(b), (c) (emphasis added).
Your question relates to the extended line of duty illness or injury leave that the city may
provide at the end of a year’s paid leave of absence. You ask whether the City may deny a fire
tighter or police officer a line of duty illness or injury retirement pension under section 143.073(b)
of the Local Government Code for the reason that the City has a general pension fund, created by
city ordinance, which applies to all city employees and is not identified as a “tire fighter’s or police
officer’s pension fund” to be used solely for fire fighters and police officers.2 We will consider only
the availability of the benefit you specifically inquire about rather than any other benefit that might
be available.
The pension benefit described by subsection 143.073(b) of the Local Government Code is
available only “[i]f the municipality has a tire fighter’s or police officer’s pension fund.”
Subsection 143.073(c) confirms that this pension benefit is not necessarily available to all tire
fighters and police officers who sustain an injury or illness in the line of duty. We can ascertain the
characteristics offire tighter’s and police officer’s pension funds from the statutes creating them and
then determine whether or not the City fund is a tire tighter’s or police officer’s pension fund. See
generally TEX. GOV’T CODE ANN. 5 3 11 ,011 (b) (Vernon 1998) (words or phrases that have acquired
a particular meaning, by legislative definition or otherwise, shall be construed accordingly).
The statutes authorizing a “tire tighter’s or police officer’s pension fund” show that these
funds are for the exclusive benefit of the class of employees identified in the name of the fund.
Article 6243a-1 ofthe Revised Civil Statutes governs “the pension funds for police officers and tire
fighters”incertainmunicipalities. TEX.JXEV.CIV.STAT.ANN. art. 6243a-1,s 1.01(a) (Vernon Supp.
2000). Only police officers and fire fighters may be members ofcombined pension systems created
pursuant to this article. Id. 5 5.01. A fund created pursuant to this statute is held for the benefit of
members who become entitled to benefits under the pension system. Id. 55 2.01(24) (defining
“fund”); 6.01 - 6.19 (benefits under the plan). Thus, the combined pension funds for police officers
and tire fighters are solely for these two classes of city employees. See also id. art. 624313, §§ 1(a),
2 (establishing in certain cities firemen and policemen pension fund, in which each fireman and
policeman employed by the city must participate); id. art. 62430, $5 1.02( lo), 1.04 (providing for
‘Letter from Honorable Ken Armbrister, Chair, Senate Committee on Criminal Justice, to Honorable John
Comyn, Attorney General of Texas (July 10, 2000) (on file with Opinion Committee).
The Honorable Ken Armbrister - Page 3 (JC-0310)
tire fighters and police officers pension fund in cities of 750,000 to 1,OOO,OOO for exclusive benefit
of members and retirees of the fund and their beneficiaries). The combined police officer and fire
fighter pension funds are for the benefit of only police officers and fire fighters.
Other statutes provide for a police officer’s pension fund or a tire tighter’s pension fund. The
Texas Local Fire Fighters Retirement Act, article 6243e of the Revised Civil Statutes, establishes
a fire fighters’ retirement system and trust fund in specified municipalities and other political
subdivisions. Id. art. 6243e, $5 1,3,4. The membership consists of fire department personnel. Id.
5 9. The assets of the fund are held in trust for the exclusive benefit of the members and retirees of
the system and their beneficiaries. Id. § 4. See also id. art. 6243e.1, $5 1.02(9), 3.01 (person
appointed as a tire fighter in cities of specified population becomes a member of the firefighters
relief and retirement fund). See also id. arts. 6243d-1, $5 1,4 (Vernon 1970) (creating “policemen’s
relief and retirement fund” for members of police departments in cities of a population of 290,000
or more); 6243n-1, $5 1.Ol, 3.01,4.01 (Vernon Supp. 2000) (establishing police retirement system
for cities of a certain population group; police officers shall become members as a condition of
employment). Where the legislature has identified a pension fund as a tire fighter’s or police
officer’s pension fund, or as a combined tire fighter’s and police officer’s pension fund, its benefits
have been available exclusively to the class of employees identified in the fund’s name.
The Employees’ Retirement Fund of the City of Fort Worth (the “Employees’ Retirement
Fund”) was established by city ordinance in 1945, pursuant to former article III, section 5 1e of the
Texas Constitution, which authorized incorporated cities and towns to create municipal retirement
systems and disability pensions. Tex. H.J. Res. 8,4Sth Leg., R.S., 1943 Tex. Gen. Laws 1142; see
CityofForth Worth v. Howerton, 236 S.W.2d615,616 - 17 (Tex. 1951). In 1975, article III, section
51e was repealed and article XVI, section 67 was added to the Texas Constitution. Tex. S.J. Res.
3,64th Leg., R.S. (1975); see 1975 Tex. Gen. Laws LXXV, LXXIX, LXXX11 (reporting adoption
Apr. 22, 1975). Article XVI, section 67 authorizes legislation providing for state and local
retirement systems, including legislation providing for “the creation by any city or county of a
system of benefits for its officers and employees.” TEX. CONST. art. XVI, 5 67(c). A statute that
became effective on the adoption of article XVI, section 67 of the Texas Constitution provided that
retirement systems created pursuant to article III, section 5 le ofthe Texas Constitution or the general
powers of home-rule cities would remain in effect, subject to legislative authority to alter or abolish
the systems. Act of May 29, 1975, 64th Leg., R.S., ch. 426, $5 3,4, 1975 Tex. Gen. Laws 1127.
The Employees’ Retirement Fund is a system of retirement and disability benefits for “all
municipal employees.” FORT WORTH CITY CHARTER,ch. XXVII, 5 36(a) (1983). Membership in
the fund is a condition of employment for all regular employees of the City. FORT WORTH, TEX.,
RETIREMENTORDINANCE, art. VI, Div. 1, $5 2-2Ol.S, 2-202 (1998). Policemen and firemen are
included in the tind. This can be seen from the references to policemen throughout the ordinance
governing the fund. Id. $9 2-2Ol.V (defining “police officer”), 2-203.A. (contributions of police
officers and ofothermembers ofthe fimd), 2-214.A. 1 (trustee for Place 1 shall be elected from group
of employees who work in the Police Department). The ordinance also makes it clear that the fund
covers firemen, because it provides that a trustee of the funds “shall be elected by Employee Group
The Honorable Ken Armbrister - Page 4 (JC-0310)
C,” consisting of members of the fund “who are assigned to work in the Municipal Court, Fire,
Information System and Services, and Housing Departments of the City.” Id. 9 2-214.A. 1.
Fire fighters and police officers employed by the City participate in a retirement fund for all
employees, rather than in separate tire tighter’s or police officer’s pension funds or a combined fund
for both fire fighters and police officers. Subsection 143.073(b) ofthe Local Government Code does
not allow a tire fighter or police officer to retire on pension until able to return to duty unless the
municipality has “a tire tighter’s or police officer’s pension fund.” The City does not have a tire
fighter’s or police officer’s pension fund within subsection 143.073(b), and accordingly, this benefit
is not available to its tire fighters and police officers. We again note that our conclusion is limited
to the temporary benefit under subsection 143.073(b), and does not address any other possible
benefit.
The Honorable Ken Armbrister - Page 5 (X-0310)
SUMMARY
Section 143.073 of the Texas Local Government Code
provides for a leave of absence for a fire tighter or police officer who
sustains an injury or becomes ill in the line of duty. Under
circumstances stated in subsection 143.073(b) of the Local
Government Code, a tire tighter or police officer who is injured or
becomes ill in the line of duty may retire on pension until able to
return to duty if “the municipality has a tire tighter’s or police
officer’s pension fund.” The benefits of a “fire fighter’s or police
officer’s pension fund” are available only to the category of city
employees named in the title ofthe fund. This benefit is not available
to tire fighters and police officers employed by the City of Fort
Worth, which has the “Employee’s Retirement Fund of the City of
Fort Worth” covering all city employees, including police officers
and fire fighters, and does not have a “tire tighter’s or police officer’s
pension fund” exclusively for those employees.
Y rsv mlY
4J+TJOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General - Opinion Committee