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## THE AYTCBRKEY GENERAL aBP XAS
AT-rOHNl!zx

DEN&RAI. May 7, 1968

Mrs. Marie Hudson Winters OpinionNo. M-229 Firemen's PensionCommissioner Sam Houston Building Re: Authority of firemen to Austin, Texas '78791 discontinue participation in the State Firemen's Relief and Retirement System inwhole 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 firemenand some paid firemen can the paidmen vote to discontinuepaying into the Fund. 

## “2. Should the entire Fire Department - both volunteer and paid firemen - vote on the question.
"3
. Can the paidmen and volunteers vote that the paidmen discontinue paying into the Fund but the volunteers continue to participate.
"4. Can a few paidmen continue to pay into the Fund and a few discontinue to pay? ur should itbe an ‘all or none' proposition.
"5. If a few paid men do stay in the Fund then is each new firemanhired not required to participate."

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### M~S.Marie HudsonWinters, page 2 (M-229)

Since each of these questions relate to participationor nonparticipation in the Fund, theywill not be treated separately here.
In regard to these questions,you are advised that under Article 6243e, Section lOA-2(f) ofVernon's Civil Statutes, all personswho have become firemen in Sulphur Springs since August 28, 1967,must participate in the Fund. The statute says:

"Each personwho shall hereafterbecome a fireman in anv citv which has a Firemen's Relief and Reitrement Fund to which he is eligible formembership, shallbecome a member of such Fund as a condition ofhis appointment, and shallby acceptance of such position acree to make and shallmake contributionsrequired under thisAct of members of such Fund. and shall oarticipate in the benefits of membership in such Fund as provided in thisAct, 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 personwho enters service as a firemanmay be denied or excused frommembership 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 instanceby the Board of Trustees." (Emphasisadded.)
As to members of the Sulphur Springs Fire Department who were appointedbefore the above-quoted amendmentbecame effective, Subdivision (g) of Section lOA- requires that these persons continue participation in the Fund. The statute says:

"Each personwho is an active member of a Firemen'sRelief and Retirement Fund previously organized and existing under the laws of this State at the effective date of this

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amendment shall continue as a member of such Fund and he shall retain andbe allowed credit for all service to which he was entitled in the Fund ofwhich he was a member immediately prior to the effective date of this amendment." Firemenwho were not members of the Fund before the 1967 amendment became effectivehave a choice as to participationunder Section 10 of Article 6243e. That statute says:

"Sec. 10. Each city or town inwhich a firemen'sRelief and Retirement Fund has been Created prior to the time at which this amending section of thisAct takes effect and which has a part-paid or volunteer fire department, or the governingbody of such city or town, shall henceforthbe authorized to deduct from the salary or compensation of each firemanwho 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-Treasurersof 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 thebenefits from such Fund, giving the name and relationship ofhis then actual dependents and authorizing said city or town or the governingbody thereof to deduct not less than one (1)per centum nor more than three (3)per centum, the exact amount thereof to be determinedby the vote of the fire department ofwhich 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)permonth, 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 Trusteesnot less than Three Dollars ($3)nor more than Five Dollars ($5)per annum tobe paid semi-annually, the exact amount thereof tobe likewisedeterminedby vote of the
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fire department ofwhich such person is a member. Such money so deducted from salaries or compensation or agreed tobe paid to become and form a part of the Fund herein designated and establishedas Firemen'sRelief 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 amountherein specified as herein provided on the part of any member shall forfeithis right to participate in any of thebenefits 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." (Emphasisadded.) 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 "'fullpaid' 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 itswords, 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 thatvolunteers in the Sulphur Springs Fire Department shouldbe allowed to continue participation in themanner prescribedabove in Section 10 ofArticle 6243e ofVernon's Civil Statutes. We conclude thatby its amendments to the statute, the Legislature evidently intended to require all fully paid firemen tobe members of the State Firemen's Relief and Retirement Fund except thosewho were not members of the Fund at the time the 1967 amendmentbecame effective. Volunteers, part-paid firemen, and those fully paidbut not members of the Fund at the time of the 1967 amendmentwere given an individual election as to participation in the Fund.
SUMMARY Fully paid firemen of Sulphur Springswho were appointed afterAugust 28, 1967.must be -1122-

### MIX. Marie HudsonWinters, page 5 (M-229)

a member of the State Firemen's Relief and Retirement Fund. Fully paid firemenwho were members of the Fund before the 1967 amendment must continue their participation in the Fund. Personswho were fully paid firemen,but were not members of the Fund at the time the 1967 amendmentbecame effectivemay elect to participate on an individualbasis. Volunteers and part-paid firemenalso have an individual election as to participation. Vy trulyyours,

Preparedby Philip G. Warner Assistant Attorney General
APPROVKD: OPINIONCOMMITTEE Hawthorne Phillips,Chairman Kerns Taylor, Co-Chairman Houghton Brownlee Ralph Rash Roger Tyler James Broadhurst
A. J. CARUBBI, JR. BtecutiveAssistant

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