Untitled Texas Attorney General Opinion ( 1964 )

NE-fc GENERAL
April 24, 1964
Mrs. Marie Hudson Opinion No. c- 248
Firemen's Pension Commissioner
Austin, Texas Re: Whether a paid fireman
in a part-paid and part-
volunteer departmentmay
start participatingin
the Pension System after
he has served several
years in the department
and has refused to partl-
Dear Mrs. Rudson: cipate.
In your letter requesting an opinion
- --from this office,
you submit certain facts which we quote as follow81
?he Firemen's Pension Board of Rarllngen,
Texas, has requested a ruling from this office
regarding Section lOA(1) of House Bill No. 35,
which became effeotlve August 23, 1963.
"Iiarllngen~sFire Department is composed
of some Volunteer Firemen and some fully-paid
Firemen. Several of their paid Firemen who have
been In the Pire Department for a number of years
but have not participated in the Firemen's Pen-
sion System are now requesting permission to
start participatingeven though they are now
over 35 years of age and have had the oppor-
tunity to participate for several years.
"It Is the oplnlon of this office that a
Fireman who was active in the Fire Department
before August 23, 1963, but who had elected
not to participate in the Firemen's Pension
System has forfeited his ;lght to participate
at this late date. . . .
With regard to these facts, you ask a question which
we quote as follows:
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Mrs. Marie Hudson, page 2 (C- 248 )
"May I have your official ruling on
whether or not a paid Fireman in a part-
paid and part-volunteerDepartmentmay
start partlclpatlngin the Pension System
after he has served several years In the
Department and has refused to participate."
Acts, 55th Leg., 1957, Ch. 275, p. 617 (H.B. 68)
became effective May 22, 1957. House Bill 68 amended Section
IO of Article 6243e, Vernon's Civil Statutes, known as the
Firemen's Relief and Pension Fund Act. The pertinent provl-
sions are as follows:
"Sec. 10. Each city or town in which a
Firemen's Relief and Retirement Fund has been
created prior to the time at which this amending
section of this Act takes effect and which has
a part-paid or volunteer fire department, or the
governing body of such city or town, shall hence-
forth be authorized to deduct from the salary or
compensationof each fireman who 1s participating
in such Fund when this emending section takes
effect, or to collect from each such fireman,
whatever amount shall have been authorized,or
agreed to, by the filing by such fireman, with
the Secretary-Treasurersof the Board of Flre-
men"8 Relief and Retirement Fund Trustees of
such flreman"s city or town, of a statement in
writing under oath that he desires to partlclpate
in the benefits from such Fund,. . .and authorizing
said city or town or the governing body thereof
to deduct not less than one (1) per centum nor
more than three (3) p,ercentum, a s . Such money
so deducted from salaries or compensationor
agreed to be paid to become and form a part of
the Fund herein designated and establishedas
Firemen's Relief and Retirement Fund of that
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Mrs. Marie Rudson, page 3 (c- 248 )~
On April 13, 1964, you advised us by letter that:
II
. . .it has been the Departmentalcon-
struction of Section 10 of the Firemen's Pension
Law, as amended Acts 1957, 55th Legislature,
that the phrase 'part-paidor volunteer depart-
ment' means a fire department that has fully
paid fIreme and volunteer firemen in the ssme
department.
Acts 58th Leg., 196 Ch. 50, p.,79 (LB. 35)s
amended Section lOA, Article 8243e Vernon's Civil Statutes.
The provisions of House Bill 35, 56th Legislature,1963, most
pertinent to our dlscussion are as follows:
"Section 1. . . .
'Sec. lOA In all cities having fully
paid firemen where Firemen's Relief and Retire-
ment Funds now exist or shall be created under
the provisions of this Act and having a popula-
tion of less than one hundred and eighty-five
&ousand~b,OOO) Inhabitantsaccording to the
receding Federal Census, the city or the govern-
bd f th ity shall deduct an amount equal
t?noOl~s~ tha: &ree per cent (3%) nor more than
six per cent (6s) from the monthly salary or com-
pensation of each participatingmember fireman.
(Emphasis added)
'1
1. . .
"'(I) Each person who is an active member
of a Firemen's Relief and Retirement Fund pre-
viously organized and existing under the laws
of this State at the effective date of this
amendment shall continua as a member of such
Fund and he shall retain and be allowed credit
for all service to which he was entitled in
the Fund of which he was a member Immediately
prior to the..effectlvedate of this'amendinent.'
‘1 1 . 1 1’
. .
“sec. 7.
All laws or parts of laws in
conflict with the provisions of this Act are
repealed to the extent of such confllot only."
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Mrs. Marie Hudson, page 4 (C- 24.8)
The provisions of Section lOA of House Bill 35
pertain to all cities of less than 185,000 population having
fully-paid firemen. The City of Harlingen, according to the
last preceding Federal Census had a population of less than
185,000.
Section lOA(1) Is applicable to fully-paid firemen
who were not active members of a 'Fund" at the effective date
of House Bill 35. Therefore, its provisions have no bearing
on the question you ask. Also, we find no other provisions In
House Bill 35 which would authorize a Harlingen fireman who has
been in the Fire Department for a number of years but has not
participatedIn the City's Firemen's Relief and RetireTent Fund
to now become eligible for participationin the 'Fund.
It must be presumed that the Leglslature In enacting
House Bill 35 had knowledge of the provisions of Article 6243e,
Vernon's Civil Statutes. St. Louis B&M Ry. Co. v. Marcofich,
221 S.W. 582 (Comm.App.19’20). In House Bill 33 the Legislature
could have expressly authorized the participationof these
firemen in a Fund but did not do so. It Is our opinion that the
provIsIons of Section 10 of Article 6243e, Vernon’s Civil Stat-.
utes, which provide that the failure or refusal to participate
forfeits the right to participate in any of the benefits from
the FiFemen's Relief and Retirement Fund are not In oonfliot
with any of the provisions of House Bill 35 and must be given
full force and effect.
On the basis of the clear and unambiguous language’
of Section 10 of Article 6243e, Vernon's Civil Statutes, it
is our opinion that a fully paid fireman of a part-paid and
part-volunteerdepartment who has served several years in a
departmentand,haa failed or refused to participate in the
city's Firemen's Relief and Retirement Fund has forfeited
his right to become a member and participate therein.
SUMMARY
A fully-paid fireman of a part-paid and
part-volunteerdepartmentwho has served
several years In a department and has failed
or refused to participate in the city's Fire-
men's Relief and Ret,lrementFund has forfeited
his right to become a member and participate
therein.
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_-
Mrs. Marie Hudson, page 5 (C- 248 )
Very truly yours,
WAGGONER CARR
Attorney C+en
WilliemS, Jr.
Assistant
1RW:mkh
APPROVED:
OPINION COMMITTEE
W. V. ffeppert,Chairman
Cecil Rotsch
Norman Suarez
Robert Smith
Llnward Shivers
APPROVEDFORTHR ATTORNEY GENERAL
BY: Stanton Stone
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