. . 

THE AYTCBRKEY GENERAL 

aBP XAS 

AT-rOHNl!zx DEN&RAI. 

May 7, 1968 

Mrs. Marie Hudson Winters Opinion No. M-229 

Firemen's Pension Commissioner 

Sam Houston Building Re: Authority of firemen to 

Austin, Texas '78791 discontinue participation 

in the State Firemen's Relief and Retirement System 

in whole or in part, and 

Dear Mrs. Whters: related questions. 

You have requested an opinion from this office regarding 

the participation of the Sulphur Springs Fire Department in the 

State Firemen's Relief and Retirement Fund. You asked the f?!~T.owing questions: 

"1 * In a Fire Department composed of 

some volunteer firemen and some paid firemen 

can the paid men vote to discontinue paying 

into the Fund. 

“2. Should the entire Fire Department - 

both volunteer and paid firemen - vote on the 

question. 

" 3 . Can the paid men and volunteers vote 

that the paid men discontinue paying into the 

Fund but the volunteers continue to participate. 

"4. Can a few paid men continue to pay into 

the Fund and a few discontinue to pay? ur 

should it be an ‘all or none' proposition. 

"5. If a few paid men do stay in the 

Fund then is each new fireman hired not required to participate." 

- 1119- 
M~S. Marie Hudson Winters, page 2 (M-229) 

Since each of these questions relate to participation or nonparticipation in the Fund, they will not be treated separately 

here. 

In regard to these questions, you are advised that 

under Article 6243e, Section lOA-2(f) of Vernon's Civil Statutes, 

all persons who have become firemen in Sulphur Springs since 

August 28, 1967, must participate in the Fund. The statute says: 

"Each person who shall hereafter become 

a fireman in anv citv which has a Firemen's 

Relief and Reitrement Fund to which he is eligible for membership, shall become a member of 

such Fund as a condition of his appointment, 

and shall by acceptance of such position acree 

to make and shall make contributions required 

under this Act of members of such Fund. and 

shall oarticipate in the benefits of membership in such Fund as provided in this Act, 

provided, however, that no person shall be 

eligible to membership in any such Fund who 

is more than thirty-five (35) years of age 

at the time he first enters service as a 

fireman: and provided, further, that any such 

person who enters service as a fireman may be 

denied or excused from membership in the Fund 

if the Board of Trustees of the Fund determines 

that such person is not of sound health. The 

applicant shall pay the cost of any physical 

examination required in such instance by the 

Board of Trustees." (Emphasis added.) 

As to members of the Sulphur Springs Fire Department 

who were appointed before the above-quoted amendment became effective, Subdivision (g) of Section lOA- requires that these 

persons continue participation in the Fund. The statute says: 

"Each person who is an active member of 

a Firemen's Relief and Retirement Fund previously organized and existing under the laws 

of this State at the effective date of this 

-1120- 
&s. mrie Hudson Winters, page 3 (M-229) 

amendment shall continue as a member of such 

Fund and he shall retain and be allowed credit 

for all service to which he was entitled in 

the Fund of which he was a member immediately 

prior to the effective date of this amendment." 

Firemen who were not members of the Fund before the 1967 amendment 

became effective have a choice as to participation under Section 

10 of Article 6243e. That statute says: 

"Sec. 10. Each city or town in which a 

firemen's Relief and Retirement Fund has been 

Created prior to the time at which this amending section of this Act takes effect and which 

has a part-paid or volunteer fire department, 

or the governing body of such city or town, shall 

henceforth be authorized to deduct from the salary 

or compensation of each fireman who is particioatinq 

in such Fund when this amending section takes effect, 

or to collect from each such fireman, whatever amount 

shall have been authorized, or agreed to, by the filing 

by such fireman, with the Secretary-Treasurers of the 

Board of Firemen's Relief and Retirement Fund Trustees 

of such fireman's city or town, of a statement in 

writing under oath that he desires to participate in 

the benefits from such Fund, giving the name and 

relationship of his then actual dependents and authorizing said city or town or the governing body 

thereof to deduct not less than one (1) per centum 

nor more than three (3) per centum, the exact amount 

thereof to be determined by the vote of the fire 

department of which such person is a member, from 

his salary or compensation if a part-paid fireman 

whose salary or compensation is more than Fifty 

Dollars ($50) per month, but if a part-paid fireman 

whose salary is less than Fifty Dollars ($50) per 

month, or if a volunteer fireman, the statement 

shall include a promise and an obligation to pay 

to said Board of Trustees not less than Three 

Dollars ($3) nor more than Five Dollars ($5) per 

annum to be paid semi-annually, the exact amount 

thereof to be likewise determined by vote of the 

-1121- 
Mrs. Marie Hudson Winters, page 4 (M-229) 

fire department of which such person is a 

member. Such money so deducted from salaries 

or compensation or agreed to be paid to become and form a part of the Fund herein designated and established as Firemen's Relief 

and Retirement Fund of that city or town. 

Failure or refusal to make and file the statement herein provided, or failure or refusal 

to allow deduction from salary or to pay the 

amount herein specified as herein provided on 

the part of any member shall forfeit his right 

to participate in any of the benefits from said 

Firemen's Relief and Retirement Fund. If any 

such member shall elect not to participate in 

such Fund, he shall not be liable for anv salary 

deduction nor to pay as herein provided." 

(Emphasis added.) 

Section 1OA of the above statute applies to "all cities having 

fully paid firemen," as does Section lOA-2, whereas Section 10B 

applies to cities with firemen in a "'full paid' fire department." 

We are not at liberty to hold these terms synonymous in order to 

hold that Section lOA- does not apply to the City of Sulphur 

Springs. We must presume that the Legislature carefully chose 

its words, and we must give effect to the distinctions in its 

language. 

The statutes are not clear as to the status of volunteers. 

However, it is the opinion of this office that volunteers in the 

Sulphur Springs Fire Department should be allowed to continue participation in the manner prescribed above in Section 10 of Article 

6243e of Vernon's Civil Statutes. We conclude that by its amendments to the statute, the Legislature evidently intended to require all fully paid firemen to be members of the State Firemen's 

Relief and Retirement Fund except those who were not members of 

the Fund at the time the 1967 amendment became effective. Volunteers, 

part-paid firemen, and those fully paid but not members of the Fund 

at the time of the 1967 amendment were given an individual election 

as to participation in the Fund. 

SUMMARY 

Fully paid firemen of Sulphur Springs who 

were appointed after August 28, 1967. must be 

-1122- 
MIX. Marie Hudson Winters, page 5 (M-229) 

a member of the State Firemen's Relief and 

Retirement Fund. Fully paid firemen who were 

members of the Fund before the 1967 amendment 

must continue their participation in the Fund. 

Persons who were fully paid firemen, but were 

not members of the Fund at the time the 1967 

amendment became effective may elect to participate on an individual basis. Volunteers 

and part-paid firemen also have an individual 

election as to participation. 

Vy truly yours, 

Prepared by Philip G. Warner 

Assistant Attorney General 

APPROVKD: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

Kerns Taylor, Co-Chairman 

Houghton Brownlee 

Ralph Rash 

Roger Tyler 

James Broadhurst 

A. J. CARUBBI, JR. 

Btecutive Assistant 

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