Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
January 27, 1978
JOHN L. HILL
Attorney General
Honorable Gibson D. Lewis, Chairman Opinion No. Ii-U.22
Natural Resources Commission
House of Representatives Re: Retirement programs for
Capitol Station 2910 volunteer firemen.
Austin, Texas 78767
Honorable Hal H. Hood, Commissioner
Firemen’s Pension Commission
503-F Sam Houston State Office Bldg.
Austin, Texas 78701
Honorable Joe Resweber
Harris County Attorney
Houston, Texas 77002
Gentlemen:
You have requested our opinion regarding a number of provisions of
Senate Bill 411, Acts 1977, 65th Leg., ch. 269, at 710, codified as article 6243e.
3, V.T.C.S., which creates a Fire Fighters Relief and Retirement Fund to
provide benefits for volunteer firemen. Section 2 of the statute provides in
pertinent part:
(b) Participation in the fund is optional. Any
governing body may, not later than 60 days after the
effective date of this Act and in accordance with the
usual procedures prescribed for other official actions
of the governing body, elect to exempt itself from the
requirements of this Act. Any action to provide for an
exemption from the requirements of this Act may be
rescinded by the governing body at any time.
(cl Every governing body shall contribute for each
fire fighter at least $12 for each month of qualified
service beginning on the date the fire fighter enters
the pension system. Contributions must be paid at
least every six months. If the member fire department
is situated in more than one political subdivision, the
governing bodies of such political subdivisions shall
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Honorable Qibson D. Lewis
Honorable Hal H. Hood
Honorable Joe Resweber - Page 2 (R-1122)
contribute equally towards a total of at least $12 for each
fire fighter for each month of qualified service.
“Governing body” is defined as
the governing body of any political subdivision of the state
within which a rural fire prevention district created pursu-
ant to the provisions of Chapter 57, Acts of the 55th
Legislature, Regular Session, 1957 (Article 2351a-6, Vernon’s
Texas Civil Statutes), is situated or the governing body of
any city or town within which a fire department subject to
the provisions of this Act is situated.
Sec. 1 (13). “Qualified service” is defined as
fire-fighting service rendered without monetary remunera-
tion 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 fires, or fire-fighting 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.
sec. l(1).
You first ask whether a city which elects to exempt itself from the operation
of Senate Bill 4ll is required to create a retirement system for its volunteer
firemen under article 6243e, V.T.C.S. The latter statute authorizes every
incorporated city with a regularly organized active fire department to establish a
firemen’s retirement fund. You state that retirement funds have been created for
a number of volunteer fire departments under article 6243e, wherein members
contribute three to five dollars per year.
Section 15(a) of Senate Bill 411requires that
[el very fire fighter in the state who serves without
monetary remuneration be a member of a solvent pension
plan.
In our opinion, this provision is to be construed as subordinate to section 2(b), which
permits a governing body to “exempt itself from the requirements mm- of this Act.” If a
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Honorable Gibson D. Lewis
Honorable Hal H. Hood
Honorable Joe Resweber - Page 3 (H-lU2)
city so elects, we believe our courts would hold that the exemption is applicable to
the entire statute, including section IS(a). ln our opinion, therefore, a city which
votes to exempt itself from the operation of Senate Bill 411 is not required by
section 15(a) thereof to create a retirement system for its volunteer firemen under
article 6243e.
You next ask whether members of a volunteer fire department which fails to
conduct two two-hour drills per month, or members who fail to attend 60 percent
of the drills and 25 percent of the fires, qualify for membership in the Fund. The
definition of “qualified service” authorizes n city to make contributions only for
service performed in accordance with the above-listed standards. A city is not
exempt from the provisions of Senate Bill 4ll, however, merely because its
volunteer fire department does not presently meet the criteria required for
“qualified service,” since the conditions therefor might occur at any time. Such a
city, unless it elected to exempt itself under section 2(b), must make contributions
during any month in which any volunteer firemen render “qualified service” in
accordance with the statute.
Your next question is whether the definition of “qualified service” is
applicable to any department having ten or more active members, without regard
to whether any members receive compensation. A nonpaid fire fighter renders
“qualified service” in one of two ways: he is a member of a unit which contains
aid fire fighters; or alternatively, he is a member of an all-volunteer unit and the
vo unteer unit meets certain standards.
ET’ If any member of the unit is paid, the
requirements attached to the all-volunteer unit are not applicable.
You also ask what constitutes “monetary remuneration” for purposes of the
definition of “qualified service. e “Monetary” has been defined as
of or relating to money or to the instrumentalities and
organixations by which money is supplied to the economy.
Webster’s Third New International Dictionary 1457, 1458 (3d ed. 1967). “Money”
generally refers to
the legal tender, metallic coins or legal tender currency of
the United States.
n v. State,34 S.W. 629, 630 (Tex. Grim. 1896). See Rodgers v. State, 448
x. Grim. 1969). “Money” is equivalent pcnsh,” and 8s a rule, it
includes checks as well as coin end currency. Raker and Taylor Drilling Co. v.
Rlanchard Drilling Co., 363 S.W.2d 818, 820 (Tex. Civ. App. - Amarillo 1962, no
writ). It does not, however, refer to “any other character of property, real or
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Honorable Gibson D. Lewis
Honorable Hal H. Hood
Honorable Joe Resweber - Page 4 (H-ll22)
PO v. Clemmons 365 S.W.2d 384, 386 (Tex. Civ. App. - Dallas 1963,
%?:t& n~&ion, therefore “monetary remuneration” includes
payment by coin, currency, check or money brder, but does not comprehend the
furnishing of free water to volunteer firemen by the municipal water system or the
furnishing of water at special rates.
Your next series of questions relate to the meaning of “governing body.” The
Act defines governing body in two ways: (1) the governing body of any political
subdivislon within which a rural fire prevention district is located or (2) the
governlng body of any city or town within which a volunteer fire department is
located. A variety of political subdivisions may come within the first part of this
deflnition. If n rural fire prevention district is located within a county, for
example, the county is the political subdivision to make contributions. The county
included within the terms of the statute,
political subdivision within which a rural fire
A school district, for example, constitutes
such n political subdivision. See Lewis v. Independent School District of City of
Austin, 161 S.W.2d 450, 452 (Teq942) If a volunteer fire department exists within
thatpolitical subdivision, the governing body thereof which has not elected to
exempt itself from the Act is required to make contributions on behalf of those
members who render nqualified service.” Furthermore, if more than one political
subdivision elects to contribute on behalf of the same volunteer fire department,
equal contributions are required.
You inquire about the identity of the governing body for a volunteer fire
department located within an unincorporated town which itself has no governing
body. Since the second part of the definition of governing body cannot apply in
that case, you must look to the first part to determine which political subdivision,
if any, is required to make contributions. The definition of political subdivision
turns on the existence of a rural fire prevention district; if the unincorporated town
you inquire about is located in a county which has no rural fire prevention district,
there is no political subdivlsion to contribute to the Fund. In such instances the
statute is not applicable.
The county may be the political subdivision required to make contributions if
a rural fire prevention district is located within it. If no rural fire prevention
district is located within a particular county, the statute is not applicable to that
county. Where a water district is located within the unincorporated town, the
water district may constitute the political subdivision, if a rural fire prevention
district is located wholly within it. If both the county ana the water district meet
the definition, then both may be required to contribute. Finally, if the rural fire
prevention district is situated within the town you describe, the district is a
political subdivision required to contribute by the Act. See
- V.T.C.S. art. 2351a-6, S
10.
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Honoreble Gibm D. Lewis
Honorable Hal H. Hood
Honorable Joe Resweber - Page 5 CR-lU21
You also inquire about the effect of a city’s rescission of a resolution
exemption itself from the terms of Senate Sill 411. Section t(b) provides that a
governing body may “at any time” rescind %ny action to provide for an exemption
from the requirements of this Act.”
In contract law rescission means an “undoing,” Adams v. Loftin, 1 S.W.2d 429,
430 (Tex. Civ. App. - Kl Paso 1927, no writ), and its effect is to restore the status
quo prior to the formation of the contract. See Dreiling v. Home State Life
Insurance Co., 515 P.2d 757, 766 (Kan. 19731. -‘l%ii definition has been used to
interpret a statute that permits rescission of an administrative order.
Oakle , 434 P.2d 868, 872 (Okln. 1967); Portland Traction Co. v. Hill, 352
d re. 960). However, in its more or&ary sense, “rescind” is synonymous with
“repeal.” Webster% Third New International Dictionary 1924,193O (3d ed. 1967); see
Rains v. Contra Costa 231 P.2d 55, 56 (Cal. 19511;Golconda Lend Minesx
350 P.2d 221, 223 19601; City of Owensboro v. Board of Trustees, 19U
d 1005;1008 (Ky.
In our opinion, if a governing body acts to rescind its order exempting itself
from the Act, its action will amount to n repeal, which operates prospectively. See
Galveston H. & H. R. Co. v. Anderson, 229 S.W. 998, 1001 (Tex. Civ. App. -
Galveston 1920-w body will begin making its contributions
at the time the rescission becomes effective.
Finally, you ask whether the contributions imposed by Senate Bill 411 are in
contravention of article 3, section 52 of the Texas Constitution, where the
volunteer fire department Is a chartered, private, nonprofit civic corporation.
Article 3, section 52(a) forbids the Legislature
to authorize any county, city, town or other political
corporation or subdivision of the State to lend its credit or
to grant public money or thing of value in aid of, or to any
individual, association or corporation whntsoever, or to
become a stockholder in such corporation. . . .
As we observed in Attorney General Opinion H-127 (19731,
[tl he current construction of [article 3, section 521 is that it
does not prohibit the Legislature from authorizing a county,
city or other political corporation or subdivision to spend its
funds with private corporations for the achievement of
publIc purposes. . . .
It is not unusual for political SubdivIsions to contract with
private corporations to perform services or functions which
the governmental unit might have provided itself.
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Honorable Gibson D. Lewis
Honorable Hal Ii. Hood
Honorable Joe Resweber - Page 6 (H-13.22)
Id. at 4. Clearly, fire protection constitutes a “public purpose.” Articles 1069 and
m5 (271, V.T.C.S., specifically empower cities to provide for fire protection, and
article 235la-1, V.T.C.S., furnishes authority for counties to do so. See also
V.T.C.S. art. 235la-5. 338 S.W.2d 133, 140 (Tern
Attorney General Opini ttorney General Opinions H-520
(1975) (county may not contribute publ&zgto the construction of a livestock
barn to be owned and operated by a private, nonprofit organization); H-397 (1974)
(county may not become a dues paying member of a chamber of commerce). In our
opinion, the contributions imposed by Senate Bill 4ll are in no way violative of
article 3, section 52 of tbe Texas Constitution.
SUMMARY
A city which elected to exempt itself from the terms of
Senate Bill 411is not required to create a retirement system
for its volunteer firemen under article 6243e or any other
statute. A city, unless it exempted itself under section 2(a)
of Senate Bill 4ll, must make contributions to the Fire
Fighters Relief and Retirement Fund for any month during
which any of its volunteer firemen render “qualified service”
in accordance with the statute. “Monetary remuneration”
includes payment by coin, currency, check or money order,
but does not embrace the furnishing of free or discounted
water. If a volunteer fire department is not located within a
city or town, any political subdivisions within which the
department and a rural fire prevention district are wholly
situated are required to make contributions to the Fund. A
city which rescinds its resolution of exemption is required to
contribute on behalf of every person rendering “qualified
service” the sum of twelve dollars per month commencing
with the effective date of the rescission order. ‘The
contributions imposed by Senate Bill 411 are not in contra-
vention of article 3, section 52 of the Texas Constitution.
Very truly yours,
Attorney General of Texas
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Honorable Gibson D. Lewis
Honorable Hal H. Hood
Honorable Joe Reswebar - Page 7 (H-lEW
APPROVED:
3JY
a&
Opinion Committee ’
jst
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