# The Attorney General of Texas January 3, 1980 MARK WHITE Attorney General

Honorable Hal II. Hood Firemen’s Pension Commissioner Opinion No.Ml+122 503-F Sam Houston State Office Bldg. Re: Whether a retired volunteer Austin, Texas 78701 fireman may continue to serve. Dear Commissioner Hood: Youhave requested our opinion regarding whether avolunteer fireman who is receiving retirement pay may continue to serve as a volunteer fireman and, if so, whether he would have a claim for disability benefits against the Volunteer Fire Fighters’ Relief and Retirement Fund inthe event ofhis disability. In reading article 6243e.3, V.T.C.S., entitled “Volunteer Fire Fighters’ Relief and Retirement Fund,” no provision can be found which expressly prohibits a retired volunteer fireman from continuing to serve as a member ofavolunteer fire department Section 4(a) ofthis statute states: “Amember fire fighter must elect between retirement or disability benefits ifeligible for both.” If aretired volunteer fireman continues to serve his department while receiving retirement pay andbecome disabled, according to the provisions of section 4(a), he must choose between these two benefits. This presumably would not cause sn actuarial problem since the governing body under whose jurisdiction the fire department exists would be required to contribute the minimum $12per month into the fund for each month of qualified service by the retired fireman, see article 6243e.3 S2(c). This contribution should satisfy the actuarial nee8 ofthe fund should adisability occur. Section l(1)defines “Qualified service” as follows: (1) ‘Qualified service’ means f&-fighting service rendered without monetary remuneration while a member in good standing of a fire-fighting unit that hasno fewer than 10active members, and a minimum of two drills each month, each drill two hours long, and each active member present at 60percent of the drills and 25 percent of the ties, or fire-fighting

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service rendered without monetary remuneration while a member of a fire-fighting unit which includes paid fire fighters. Absence caused bymilitary duty does not affect qualified service. There is nothing in the definition of “qualified service” under section l(1)which indicates that service by a fireman drawing retirement pay cannot be considered

“qualified service.” Avolunteer fireman’s receipt of retirement pay does not constitute “monetary remuneration” since he does not receive such pay as a result of his current services to the department. In the event a volunteer fireman dies, if his death was not a result of his performance of duties as afire fighter, the lump-sum benefit would beno different if he were active or retired, therefore, a retired fireman’s status as an active member in this type of situation would have no effect onthe fund If, however, his death were caused by his duties as an active member of his department, his survivors wouldreceive alump-sum payment of noless than $5,000, and a retired fireman’s status as an active member in this instance would normally make a difference as to his survivors’ benefits. If the $5,000 lump-sum benefit is greater than what the retired fieman’s survivors wouldreceive ifhe had not been in active service, the additional drain onthe fund which this would create would here again be compensated for bythe fact that the governing body had made monthly contributions into the fund and such contributions have been determined by the actuaries to be sufficient to cover this contingency. In addition to lump-sum death benefits, section 5(c) and Cd)provide for monthly survivor benefits as follows:

(c) In addition to the lump-sum death benefit, the spouse and dependents shall receive in equal shares a survivor’s benefit equal to two-thirds of the disability benefit the decedent would have received at date of death. Aslong as both spouse and one or more dependents survive, an additional one-third ofthe disability benefit the decedent would have received at date of death shall be paid to the dependents inequal shares. (d)If a member fire fighter dies after retirement, the surviving spouse shall receive two-thirds ofthe monthly pension the decedent wasreceiving at the time ofdeath. As can be seen, these benefits are significantly different depending on whether the fieman is retired or active. Since, in the situation before us, the fireman would be both retired and active, according to the underlying principle of section 4(a) the survivmust ch= between the benefit based on the retirement pension or the benefit based on the disability benefit.

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SUMMARY A retired volunteer fire-fighter may continue to serve his department as an active member and does have a legal claim against the volunteer Fire Fighters’ Relief and Retirement Fund in the event of his disability or death. If the fire-fighter is eligible for both disability and retirement benefits, he must elect between them.

MARK WHITE Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General TEDL.HARTLEY Executive Assistant Attorney General Prepared byEva King Loutzenhiser Assistant Attorney General APPROVED: OPINIONCOMMITTEE C.Robert Heath, Chairman David B.Brooks BobGammage Susan Garrison Rick Gilpin Les King Eva KingLoutzenhiser

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