The Attorney General of Texas 

January 3, 1980 

MARK WHITE 

Attorney General 

Honorable Hal II. Hood 

Firemen’s Pension Commissioner 

Opinion No. Ml+ 12 2 

503-F Sam Houston State Office Bldg. Re: Whether a retired volunteer 

Austin, Texas 78701 fireman may continue to serve. 

Dear Commissioner Hood: 

You have requested our opinion regarding whether a volunteer 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 in the event 

of his 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 

of a volunteer fire department 

Section 4(a) of this statute states: “A member fire fighter must elect 

between retirement or disability benefits if eligible for both.” 

If a retired volunteer fireman continues to serve his department while 

receiving retirement pay and become 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 $12 per month into the fund for each month of qualified service by 

the retired fireman, see article 6243e.3 S 2(c). This contribution should 

satisfy the actuarial nee8 of the fund should a disability 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 

has no fewer than 10 active members, and a minimum 

of two drills each month, each drill two hours long, 

and each active member present at 60 percent of the 

drills and 25 percent of the ties, or fire-fighting 

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Honorable Hal H. Hood - Page Two (Mw-122) 

service rendered without monetary remuneration while a member 

of a fire-fighting unit which includes paid fire fighters. Absence 

caused by military 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.” A volunteer 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 a fire 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 on the fund 

If, however, his death were caused by his duties as an active member of his 

department, his survivors would receive a lump-sum payment of no less 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 would receive if he had not been in active service, the 

additional drain on the fund which this would create would here again be compensated for 

by the 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. As long as both spouse and one or more 

dependents survive, an additional one-third of the disability benefit 

the decedent would have received at date of death shall be paid to 

the dependents in equal shares. 

(d) If a member fire fighter dies after retirement, the surviving 

spouse shall receive two-thirds of the monthly pension the decedent 

was receiving at the time of death. 

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. 

p- 382 
Honorable Hal H. Hood - Page Three (MW-122) 

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 of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Eva King Loutzenhiser 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

David B. Brooks 

Bob Gammage 

Susan Garrison 

Rick Gilpin 

Les King 

Eva King Loutzenhiser 

P. 383