Untitled Texas Attorney General Opinion ( 1975 )

The Honorable Hal H. Hood Opinion No. H-445
Fireman’s Pension Commissioner
503-f Sam Houston State Office Bldg. Re: Eligibility of paid fireman
Austin, Texas 78701 who also works as volunteer fireman
during off-duty hours, to participate
in pension plans covering each position
and receive pensions for past services
- that as a paid fireman and as a
volunteer fireman.
Dear Commissioner Hood:
You have submitted two requests for an opinion that involve paid fire-
men, who during their off-duty hours, serve as volunteer firemeh. You ask
whether these firemen can, upon retirement, receive pensions for their service in
each capacity.
Articles 6243a, 6243b. 6243c, 6243d, 6243e and 6243f, V. T. C. S.. , pro-
vide for the creation of pensions for paid firemen to be disbursed from a number of
trust funds which are established for cities in different population brackets. In
addition, article 6243e provides that volunteer firemen (as well as paid firemen)
can participate in the pension fund created by such article and denominated the
Fireman’s Relief and Retirement Fund.
In Attorney General Opinion H-7 (1973) we listed three impediments to
the holding’of dual offices: (1) the separation of powe.r requirement of article 2,
section 1 of the Texas Constitution; (2) the limitations imposed by sections 33 and
40 of particle 16 of the Texas Constitution; and (3) the common law doctrine that one
person cannot hold two incompatible offices., See also Attorney General Letters
Advisory Nos. 55 (1973) and 65 (1973).
It is, of course, apparent that there is no violation of the constitutional
separation of powers requirement since both positions involved are of the execu-
tive branch of government.
Section 40 of article 16 of the Texas Constitution prohibits one person
from holding “more than one civil office of emolument” (with exceptions not appli-
cable here). Section 33 of article 16 bars the “Accounting Offices of this State”
from making any payments to any person holding “more than one civil office of
emolument, in violation of Section 40. “
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The Honorable Hal H. Hood - Page 2
While ,a volunteer fiieman is not paid for his service. the proper dis-
charge of his duties as a volunteer will result in his eligibility for a pension (see
section 6 of article 6243e) and it cannot be said that the position of volunteer G-
man is without emoluments since his labors in such capacity will result in “pecuni-
ary gain or advantage. ” Irwin v. State, 177 S. W. 2d 976 (Tei. Crim. App. 1944);
Attorney General Letter Advisory No. 85 (1974).
However, we are of ihe opinion that a volunteer fireman does not occupy
a “civil office” within the meaning of section 40 of article 16.
One requirement of a “civil office” is that a “public employment be
created by law . . . which is continuing and not intermittent or occasional in nature. IV
Attorney General Letter Advisory No. 63 (1973). We think that such requirement is
not satisfied in the case of a volunteer fireman who serves only in the case of a fire-
created emergency and who, ads you have informed us, is required, to attend only
one-fourth of the fires responded to by the department of which h$ is a member to
be eligible for a pension.
Accordingly, since a volunteer fireman does not occupy a civil office, the
restrictions of sections 33 and 40 of article 16 will not foreclose narticination in
and receipts from two pension funds., See also Attorney General Letters Advisory
81 (1974) and 85 (1974).
There remains the question of whether the common law doctrine of in-
compatibility will bar the holding of a position as paid fireman and a position of
volunteer fireman at the same time. Offices are incompatible where their duties
are or may be inconsistant or in conflict. State v. Martin, 51 S. W. 2d 815 (Tex.
Civ. App. --San Antonio 1932, no writ). Rather than being “in conflict, ” the two
positions may very well complement each other since the duties of each are con-
sistent with the other. -See Attorney General Letter Advisory No. 30 (1973).
Nevertheless, while there may be no legal incompatibility which would
foreclose,the simultaneous holding of positions as a paid and a volunteer fireman,
any employer has the right to insist that an employee “devote as much time to his
employment as was contemplated at the time he was employed. ” Attorney General
Letter Advisory No. 62 (1973). This, of course, is a matter to be determined by
the fire department or departments involved.
We conclude t:hat: there are no general legal impediments to one person
holding positions as a p&id fireman and a volunteer fireman at the same time and he
may participate in the pension plans established for each position. See also section
67 of article 16, T.exas Constitution. Of cburse the statutes involving each par-
ticular pension plan should be consul.ted to determine if there are statutory barriers
to specific combinations.
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The Hono~rable Hal H. Hood - Page 3
SUMMARY
A paid fireman, who also serves as
a volunteer fireman, may participate
in pension plans covering both positions,
and receive a pension for service in each
position,
Very truly yours,
L. HILL
Attorney General of Texas
PPROVED:
/
Opinion Committee
jad:
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