Untitled Texas Attorney General Opinion ( 1959 )

Mrs. Marie Hudson Fireman's Pension Commissioner 702 Tribune Building Austin, Texas Opinion No. ``-726 Re: Whether a Fire Department joining the State Fire- men's Pension System must have 100% participation and If an age limit can be set for individual firemen to participate Dear Mrs. Hudson: in the Pension Program. You have requested an opinion as to whether a Fire Department joining the State Firemen's Pension and Retire- ment Program is required to have all firemen participate in the program. House Bill 358, Acts of the 45th Legislature, Regular Session, 1937, Chapter 125, page 229, codified as Section 10, Article 6243e of Vernon's Civil Statutes, allowed the individ- ual fireman to make his choice as to his participation in the Pension and Retirement Program. "Sec. 10. Withln sixty (60) days after this Act takes effect each fully paid fireman and each part paid fireman whose salary or compensation is Fifty Dollars ($50) or more per month and each part paid,fireman whose salary or compen- sation is less than Fifty Dollars ($50) per month and each active voluntee fire- man in the employ of any such city or town or enrolled in the fire department of any such city or town, who desires him- self or his beneficiaries, as hereinafter named, to participate in such Fund or the benefits therefrom as by this Act provided, shall file with the Secretary-Treasurer of Mrs. Marie Hudson, page 2 (``-726) the Board of Firemen's Relief and Retirement Fund Trustees of that city or town a state- ment in writing under oath that he desires to partic!.patein the benefits from such Fund, e . .' Section 12 of House Bill 68, Acts of the 55th Legisla- ture, Chapter 275, Page 617, codified as Section lOB, Article 6243e of Vernon's Civil Statutes, amended Section 10 of Article 624je. This amendment recognized the privilege of a fireman not to participate in the program if he was a member of a de- partment which had an existing retirement program at the time this amendment took effect. "Any fireman who is a member of a depart- ment which had an existing Firemen's Relief and Retirement Fund prior to the effective date of this amending Act and who has elected and does elect not to participate in such Fund, shall not be liable for any salary deduction provided by this Act; but each person who shall hereafter j,oina fully paid fire department which then has a Relief and Retirement Fund shall file a statement in writing, in the man- ner hereinabove provided by this section, upon joining such department and shall thereafter participate In the contributions to and bene- fits from such Fund, as provided by this Act, unless such new fireman shall be rejected or excused therefrom by the Board of Trustees upon a determination by the Board that such person is not of sound health. . o ." It is our opinion that all firemen, who are members of a fully paid fire department, must participate in the Fire- men's Relief and Retirement Fund unless they, as individual members of a fire department with a retirement program, had elected not to participate in that retirement program before Section 10-B, Article 6423e, Vernon's Civil Statutes, became effective. Your second question as to whether an age limit can be set precluding firemen over the age of forty (40) from parti- cipating in the Firemen's Relief and Retirement Program is - . Mrs. Marie Hudson, page 3 (~-7%) answered by Section 10-B of Article 6243e, as set out above. Under Section 10-B, an individual who joins a fully paid fire department, covered by this Act, with a Relief and Retirement Program, is required to participate in the Program unless such fireman is rejected by the Board of Trustees for the reason set out in the statute. In our opinion this would not allow a fire department to exercise its discretion in excluding individuals on the basis of age. Section 10-B of Article 6243e of Vernon's Civil Statutes restricts its coverage to fully paid fire departments which necessarily restricts the coverage of this opinion to fully paid fire departments, although as indicated a member of any fire department with a retirement system in effect at the time this statute went into effect who now works for a fully paid fire department participating or that is now electing to parti- cipate in the Firemen's Pension and Retirement Fund has the option as set forth In this opinion. SUMMARY All firemen, who are members of a fully paid fire department, and are covered by this Act, must participate in the Fire- men's Relief and Retirement %nd estab- lished under Section 10-B of Article c243e, Vernon's Civil Statutes, unless they, ds individuals, elected not to participatn in a re'1remer.tfund available to them through their fire department prior to May 22, 1957. A fire department cannotexclude an indi- vidual who joins that department from participating in the Firemen's Relief and Retirement Fund on the basis of age. Yours very truly, WILL WILSON Attorney General of Texas JCS:me:mfh By 525 :;i& Assist&t . . Mrs. Marie Hudson, page 4 (WW-726) APPROVED: OPINION COMMITTEE John Reeves, Chairman Willlam E. Allen L. P. Lollar Arthur J. Sandlin REVIEWED FOR THE ATTORWY GENERAL BY: W. V. Geppert