Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 22,2004
Ms. Lisa Ivie Miller Opinion No. GA-0272
Commissioner
Office of Fire Fighters’ Pension Commissioner Re: Whether the Office of Fire Fighters’ Pension
Post Office Box 12577 Commissioner may charge an administrative fee
Austin, Texas 78711 to participating departments in its retirement
system (RQ-0230.GA)
Dear Commissioner Miller:
You ask whether the Office of Fire Fighters’ Pension Commissioner (the “Commissioner”)
may charge “participating departments an administrative fee for the payment of Texas Local Fire
Fighters’ Retirement Act . pensions administered by the TSESRA [Texas Statewide Emergency
Services Retirement Act] Board of Trustees and the Commissioner.“’
We understand your question to concern those participating departments whose members
elected to merge their Texas Local Fire Fighters’ Retirement Act (the “TLFFRA”) volunteer fire
fighters’ pensions into the TSESRA system. See Request Letter, supra note 1, at 1. “‘Participating
department’ means a public entity that performs fire, rescue, or emergency medical services and
participates in the pension system under [article 6243e.31.” TEX.REV.CIV. STAT.ANN.art. 6243e.3,
5 l(l0) (Vernon 2003). In 1977, the Texas Legislature created the Volunteer Fire Fighters’ Relief
and Retirement Fund in order to provide a pension system for volunteer tire fighters. See Act ofMay
20, 1977, 65th Leg., R.S., ch. 269, 1977 Tex. Gen. Laws 710,710 (Revised Civil Statutes, article
6243e.3). The short title was amended in 1997 to the Texas Statewide Emergency Services
Retirement Act. See Act of May 22, 1997, 75th Leg., R.S., ch. 724, 1997 Tex. Gen. Laws 2381,
2382. Under the authority of the TSESRA, the Commissioner administers the Texas Statewide
Emergency Services Personnel Retirement Fund (the “Fund”). See TEX.REV. CIV. STAT.ANN. art.
6243e.3, $5 lA, 19 (Vernon 2003). The State Board of Trustees (the “Board”) establishes and
oversees policy for the administration of the Fund. See id. 5 21.
You inform us that inNovember 2003 the Fund’s actuary‘reported that the TSESRA system
is not actuarially sound.” Request Letter, supra note 1, at 2. In order to “increase the amount of
money available to amortize unfunded actuarial accrued liabilities,” the Board would like “the
‘LetterfromLisaIvieMiller,
Commissioner,OfficeofFireFigbters’
PensionCommissioner,
toHonorableGreg
Abbott, Texas Attorney General (May 20, 2004) (on tile with the Opinion Committee,also ovdable af
http://www.oag.state.br.us)
[hereinafkrRequestLetter].
P Lisa Ivie Miller - Page 2 (GA-0272)
Commissioner to charge participating departments an administrative fee for the payment [of
TLFFRA pensions].” Zd. at 1-2. Section 301,9(c) of the Texas Administrative Code currently
provides that governing entities “are not billed for administrative costs associated with the Fire
Fighters Pension Commissioner payment of TLFFRA pensions.” 34 TEX.ADMIN.CODE5 301.9(c)
(2004). You state that, “the Board would like to amend 34 TAC 30 1.9(c) to allow for an assessment
of administrative fees for the payment of TLFFRA pensions.” Request Letter, supra note 1, at 2.
The TSESRA directs the duties ofboth the Board and the Commissioner. See TEXREV. CIV.
STAT. ANN. art. 6243e.3, $5 19, 21 (Vernon 2003). Although the statute allows the Board to
“establish rules necessary for the administration of the fund,” id. 5 21(b), the Board is limited to
paying administrative expenses from “income earned by investment of the fund.” Id. 4 21(a). The
Commissioner “may request and administer additional state funds in an emergency.” Id. 5 19(e).
The Fund is a trust fund within the state treasury. See id. 5 2(a). Article 6243e.3, section 2(d)
provides for the actuarial soundness of the Fund:
The state shall contribute the sum necessary to make the fund
actuarially sound each year. The state’s contribution may not exceed
the amount of one-third of the total of all contributions by governing
bodies in one year. If the state contributes one-third of the total
contributions of the governing bodies in one year, the fund shall be
presumed actuarially sound.
Id. 5 2(d).
A state agency may exercise only those powers expressly conferred, together with those that
may necessarily be implied from the powers expressly granted. See Pub. Util. Comm ‘n v. City Pub.
Serv. Bd. of San Antonio, 53 S.W.3d 310, 316 (Tex. 2001). A state agency may not exercise what
is effectively a new power on the theory that such an exercise is expedient for the agency’s purposes.
See id. Article 6243e.3 of the Revised Civil Statutes provides sources of funding. See TEX.REV.
CIV. STAT.ANN. art. 6243e.3, §§ 2(d) (Vernon 2003) (requiring the state to contribute sums to make
the Fund actuarially sound), 19(e) (providing for emergency funding from the state), 21(a) (limiting
payment of administrative expenses to “income earned by investment of the fund”). It does not
expressly authorize the Commissioner to assess administrative fees. Nor, in our opinion, may the
authority to do so be inferred from any provision of article 6243e.3. As a result, we conclude that
the Office of Fire Fighters’ Pension Commissioner may not charge an administrative fee to
participating departments in its retirement system.
:. Lisa Ivie Miller - Page 3 (GA-0272)
SUMMARY
The Office of Fire Fighters’ Pension Commissioner may not
charge an administrative fee to participating departments in its
retirement system.
Yours verytruly,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee