-E A'ITORNEYGENEEXAL 

OF TEXAS 

February 25, 1953 

Hon. G. F. Wllllam~ opinion Ho. s-11. 

Firemen's Pension CornmIssioner 

702 Tribune Building 

Austin, Texas Re: Eliglbilitg of the Texas 

Municipal Retirement System 

Dear Sir: 

to receive funds appropriated 

for the Firemen's Relief and 

Retirement Fund. 

Reference 18 made to your request for an opinion 

which reada in part a8 follows: 

"I have a 

board on which 

problem with a local pension 

5 shall have to request your 

advice or ruling. It concerns a full-paid 

Fire Department whose flremen have been 

participating In the State Firemen's Pension 

System since the beginnlng, when the Pension 

Law was enacted. . . . 

"On September 16, 1952, I was notirled 

that they had transferred all of their funds 

to the Municipal Retirement System on March 

10, 1952. On September 11, 1952, they returned 

a State Warrant . . . which had been mailed 

to the Secretary of the Firemen's Pension 

Board or their city. They requested that I 

change payee on the warrant rrom the 'Secretary, 

Firemen's Relier and Retirement, to the 'Texas 

Municipal Retirement System.' . . . 

"I would appreciate very much if you 

woul,d furnish me your ruling a8 to vhat authority 

I have to take action In the matter." 

Chapter 125, Acts or the 45th Legislature, 

Regular Session 1937, Page 229 (codified a8 Article 

6243e, V.C.S.) provided for the establishment of the 

Firemen's Reller and Retirement Fund. Section 2 of 

Article 62~43e, levied an occupation or license tax on 

Insurance companies with the major portion of the funds 

received rrom this tax to be deposited In the Firemen's 

Relier and Retirement Fund. 
Hon. G. F. Williams, p8ge 2 (S-11). 

The tax on fir0 insurance premluma van held 

unconstitutional by American Alliance Ins. Co. v. Board 

of Ins. Com'rs., 126 S Y 2d 741 (Tex. Civ. App. 1939 

error ref.) as vIolat& the due process and equal ' 

protection irovlslons of the State and Federal Constitutiona and impinging on the powers and duties of 

the Board of Insurance Commiseloners. Since this 

holding, the Legislature has appropriated biennially 

from the General Revenue Fund to finance the FIremen's 

Relier and Retirement Fund. _ 

The Texas Municipal Retirement System,,on 

the other hand, w&e set up by the Legislature ae a 

self-sustaining agency. Acts 

Ch. 75, page 108. 7 

0th Leg., R.S. 1947, 

Section 4(b 4 of Chapter 75 provlded: 

"The Legislature shall never make 

an appropriation to pay any of the cost 0r 

thle eyatem." 

However, Section 10 of the same act provided: 

"When the members of the Fire Department 

of a municipality by their election and with 

the consent of their employer become participants 

of this municipal system upon the voluntary 

application of the employing munlclpallty &he 

Fih~dil:I1;~f,~an~~,-.oP~1thq 'Firemen's Relief and 

Retirement Fund' or such tinicipallty and 

all tuture payments to such Fund may be 

traneferred to the Board and credlted to 

its Prior Service Reserve Fund. 

"All distributiona amd payments vhlch 

could be made annually to a 'Firemen's Relief' 

and Retirement Fund' for the rlremea of any. 

participating municipality, ir the rlremen 

of such municipality were not covered by this 

or 8ome other Pensloa or Retirement System 

or if such participating municipality has or 

had taken the proper steps to 6ecure such funda, 

shall be paid over to the Board and credited 

for the benefits of such riremen as the Board 

shall direct." 

Section 4 and Section 10 of Chapter 75 were 

clearly conflicting In nature. While providing that 

the Legislature should never appropriate funds to pay 

any of the cost of the Texas Municipal Retirement Sya&em, 

the act also provided that funds otherwise payable to a 
Bon. 0. F. Wllliame, page 3 (S-11). 

FIremen Fund should be paid to the Municipal Retlrement System. 

The 51st Legislature. amended the above statute 

relating to the Municipal Retirement Syatem. In the 

amended act the prohibition again&t leglslatltie appropriations to the Munlci 

$ 

al Retirement 

T 

stem was deleted. 

Acta 518t Leg., 

Article 624311, 

R.S. 19 9, Ch. 24, p. 2 (codified ae 

V.C.S.). The Legislature in the 8ame 

act appropriated #jC,CCC.CC for that lbyatem ba a loan. 

Section 10 relating to payment to the Municipal Retlrement System of amounts from the Firemen'8 Relief and 

Retirement Fund va8 re-enacted by the Leglelature as 

Section XI of the amended act. 

It 18 our opinion that Section XX of Article 

6243h, V.C.S., ineofar ae it concern8 State~funda, Is 

uncon8tltutlonal as it violates Article III, Section 

511 of the State Constitution, vhich provides: 

*The Legislature of thla State shall 

have the authority to provide for a system of 

retirement and disability peaslQti8 for appolntive 

officers and employee8 of cities and town8 to 

operate statevlde or by districts under such 

a plan and program a8 the Legislature shall 

direct and shall provide that participation 

therein by cltiea and towns shall be voluntary; provided that the Legislature shall 

never make an appropriation to pay any of 

the cost of any system authoriced by thle 

Section.' 

Hence you would not be authorlzed to make a payment to the Municipal Retirement System from funds 

appropriated by the Legislature for the Firemen's Relief 

and Retirement Fund. 

SUMMARY 

Under the fact8 submitted, the Flremen'8 Pension Comml88loner le not authorized to certify a payment to the Municipal 
Fioni G. F. Wllllams, page .!I (S-11). 

Retirement System rrom the Firemen'6 

Relief and Retirement Fund appropriat Ion. 

APPROVED: Yours very truly, 

Rudy G. R1c.e JOHNBEN SHEPPERD 

State Affairs Division 

Wlllis'Gre8ham 

Reviewer 

Robert S. Trotti 

First ASsiStant 

John Ben Shepperd 

Attorney General