# The Attorney General of Texas December 29, 1978 JOHN L. HILL Attorney General
Honorable Hal H.Hood Firemen’s Pension Commissioner 503-F Sam Houston State Office Building Austin, Texas 78701
Dear Commissioner Hood: Opinion No. H-1316 Re: Eligibility for membership in Firemen’s Relief and Retirement Fund.

You have requested our opinion regarding the scope of eligibility for participation in the Firemen’s Relief and Retirement Fund under article 6243e, V.T.C.S. Abroad and liberal interpretation should be given to the construction of a pension law in order to achieve the beneficial intentions of the legislature. Board of Firemen’s Relief and Retirement Fund Trustees v. Marks, 237S.W.2d 420 (Tex. Civ. App. - Austin 1951),rev’d on other grounds, 242 S.W.2d 181 (Tex. 1950 (claim for disability pension). Article 6243e makes numerous references to ‘duly appointed and enrolled” firemen. Noprecise definition is given for a “fireman,” although that term is defined in other pension statutes as “an active member of a regularly organized fire department of an incorporated city.” V.T.C.S. arts. 6243e.l 5 (2), 6243e.2 5 (2). Webelieve that an individual need not be engaged in the actual task of fighting fires in order to be a fireman for purposes of article 6243e. We are led to this conclusion .in part by the language of section 2 of article 6243e.2. That section requires that, in certain large cities the Board of Trustees who administer the pension fund be composed of representatives from: (1)the
“Suppression Division” of the fire department, (2)the division whose members devote full time to prevention and investigation of fire or are permanently assigned to the “Record Division or Fire Chief’s Office,” and (3) the “Fire Alarm Operators Division or the Fire Department Repair Division.” The same reference to these three categories was found in article 6243e when that statute applied to larger cities. Acts 1957,55th Leg., ch. 275. Wethink that this representation on the board of trustees reveals the intended scope of oarticioation in the oension olan. COIIIDarable conclusions have been reached by courts of other s’tates fa;?ed with co’nstruing pension statutes for firemen. Quinn v. Retirement Board, 289 N.E.2d 117, 122 (Ill. App. 1972) (fire commissioner was a fireman although not actively engaged in fire fighting); Maust v. Firemen’s Relief Assoc., 282 A.2d 239, 240 (Pa. 1971)(actual fire

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fighting not required to obtain pension rights); Leffingw ell v. kiersted, 65 A. 1029, 1030 (N.J. 1907);Knoll v. City of Los Angeles 132P.m3 (Cal’f 1942)( prepared statistical data was member of)fire department clerical worker who fir’pension purposes). But see -Thatcher v. Hogan, 121N.E.2d 130 (Ohio Ct. Corn. Pleas 1954) (lineman cable splicer lefor fireman pension plan). We caution however, that not every employee on a fire department may be considered a member of that department for pension purposes. We believe one’s employment must bear a significant relationship to the duties of a fire department which is a question of fact we cannot determine in the opinion process. See Firemen’s and Policemen’s Civil Service Comm. v. Wells, 306 S.W.2d 895 (Tex. 1957manitor of police deoartment was not eneaeed in the active duties of law enforcement and thus was ineligible for pension). - I You also ask who determines eligibility. It is our opinion that eligibility to participate in the pension fund is determined in the first instance by the Board of Trustees, established bysection 3of article 6243e, whose duties include the authority to

receive, handle and control, manage, and diipurse such Fund

. . . [andI to hear and determine all applications for retirement, claims for disability, either partial or total, and to designate the beneficiaries or persons entitled to participate therein.

. .. SUMMARY All members of a fire department whose duties include the prevention, suppression, investigation, maintenance and related clerical work are eligible to participate in the Firemen’s Relief and Retirement Fund. Eligibility is determined by Board of Trustees.

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Honorable Hal H.Hood - Page3 (H-1316)

APPROVED:

Opinion Committee

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