Mrs. Marie Hudson

Fireman's Pension Commissioner 702 TribuneBuilding Austin, Texas OpinionNo. ~~-726

Re: Whether a Fire Department joining the State Firemen's Pension Systemmust 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 Retirement 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 individual fireman to make his choice as to his participation in the Pensionand 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) ormore permonth and each part paid,firemanwhose salary or compensation is less than Fifty Dollars ($50) per month and each active voluntee fireman in the employ of any such city or town or enrolled in the fire department of any such city or town,who desireshimself 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-TreasurerofMrs. Marie Hudson,page 2 (~~-726)

the Board of Firemen'sRelief and Retirement Fund Trustees of that city or town a statement in writing under oath thathe desires to partic!.pate

in the benefits from such Fund, e
. .'
Section 12 of House Bill 68, Acts of the 55th Legislature, Chapter 275, Page 617, codified as Section lOB, Article 6243e of Vernon's Civil Statutes,amended Section 10 of Article 624je. This amendment recognized theprivilege of a fireman not to participate in the program if he was a member of a departmentwhich had an existing retirementprogram at the time this amendment took effect.

"Any firemanwho is a member of a department 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, shallnot be liable for any salarydeduction providedby this Act;but eachperson who shall hereafter j,oin

a fully paid fire department which then has a Relief and Retirement Fund shall file a statement in writing, in themanner hereinaboveprovided by this section,upon joining such department and shall thereafter participate In the contributionsto and benefits from such Fund, as providedby this Act, unless such new fireman shallbe rejected or excused therefromby the Board of Trustees upon a determinationby the Board that such person is not of soundhealth.

. o ."

It is our opinion that all firemen,who aremembers of a fully paid fire department,must participate in the Firemen's Relief and Retirement Fund unless they, as individual members of a fire departmentwith a retirementprogram,had elected not to participate in that retirementprogram before Section 10-B, Article6423e, 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 participating in the Firemen's Relief and Retirement Program is- .

Mrs. Marie Hudson, page 3 (~-7%)

answeredby Section 10-B of Article 6243e, as set out above. Under Section 10-B, an individualwho joins a fully paid fire department, coveredby this Act,with a Relief and Retirement Program, is required to participate in the Programunless such fireman is rejectedby 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 individualson the basis of age.
Section 10-B of Article6243e of Vernon's Civil Statutes restricts its coverage to fully paid fire departmentswhich necessarily restricts the coverage of this opinion to fully paid fire departments,although as indicateda member of any fire departmentwith a retirement system in effect at the time this statutewent into effectwho now works for a fully paid fire departmentparticipating or that is now electing to participate in the Firemen's Pension and RetirementFund has the option as set forth In this opinion.

SUMMARY
All firemen,who aremembers of a fully paid fire department, and are coveredby this Act,must participate in the Firemen's Relief and Retirement %nd establishedunder Section 10-B of Article c243e, Vernon's Civil Statutes,unless they, ds individuals,electednot to participatn in a re'1remer.t

fund available to them through their fire departmentprior to May 22, 1957.

A fire department cannotexclude an individual who joins that department from participating in the Firemen'sRelief and Retirement Fund on the basis of age.

Yours very truly,

WILL WILSON AttorneyGeneral 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