### ORNEY GENERAL

TEXAS

September 22, 

### 1958

Mrs. Marie Hudson Firemen's Pension Commissioner 702 Tribune Building Austin, Texas OpinionNo.

### WW-501
Re: The maximum benefit provided for the beneficiaries of a firemanwho was covered at the time of his death by the provisions of the Firemen's Pension Law, said death not being caused by the performance of Dear Mrs. Hudson: his duties as a fireman.

We have your request for an opinion. You desire to know what is the measure of the maximum benefit provided for the beneficiaries of a f,ireman who was covered at the time of his death by the provisions of The Firemen's Pension Law, said death not being caused by the performanceof his duties as a fireman.

Section 

### 7A of Article 6243e ofVernon's Civil Statutes, providesa pensionallowance for death or disability from cause not resulting from performanceof duties and reads
2s follows:

Whenever a person serving as an active fireman duly enrolled in any regularlyactive fire department in any city or town in the State having a population or less than five hundred thousand (500,000)according to the last precedingFederal Census,which city or town is now within or may hereafter comewithin the provisions of thisAct, shall die or become disabled from any cause other than a disability acquired in the performance of his duty as a fireman, a pension allowance shall be paid to the widow or fireman. The monthly pension allowance shall be computed as follows: rive per cent (5%)of the total amount the individual fireman or widow would have been entitled to receive under Section 

### 7 or Section 12 hadMIS. Marie Hudson, page 2 

### (WW-501)

such death or disability occurred as the result of such fireman's being incapacitatedor killed while in and/or in consequence of the performance ofhis duty as a fireman shall be allowed for each year of participation in the relief and retirement fund, provided that such allowance shallnot be computed on the basis of more than twenty (20)years. Inno event, however, shall such fireman or widow receive an amount less than Fifty Dollars ($50)per month. If such fireman be a volunteer fireman and thereby receivingno salary, the amount so ordered paid, if all of the other conditionshave been met, shall be not less than Twelve Dollarsand Fifty Cents ($12.50) per month.

"Ifany such firemanwho is a member of a 'fullpaid' fire department shalldie from any cause not growing out of and not in consequence of his duty as a fireman and shall leave surviving him a child or children under the age of eighteen (18)years or a dependent parent, said Board of Trustees shall order paid a monthly pension allowance as follows: (a)to the guardian of each child the sum of Twenty Dollars ($20)per month until such child reaches the age of eighteen (18)years; (b)in the event thewidow dies after being entitled to her allowanceas herein provided or in the event there be no widow to receive an allowance, then the amount to be paid to the guardian of any dependentminor child or children under the age of eighteen 

### (18)years shall be Forty Dollars ($40)per month for each such dependentminor child; and (c)to the dependent parent only in case no widow or child is entitled to allowance, the amount thewidow would have received to be paid to but one (1)parent and such parent to be determined by the Board of Trustees;provided however.that the total allowance to be aaid all beneficiaries or deoendents
as herein provided shallnot exceed the month& allowance to be caid the tensionerhad he continued to live or be retired on allowance at the date of his death; and further provided that if such amount be insufficient to pay the !ull schedule of benefits as herein provided, such benefits shall be prorated. Allowance or benefits payable to any minor child shall :easewhen such child becomes eighteen 

### (18)years of age ormarries.Mrs. Marie Hudson, page 

### 3 @J-w-501)

"Provided,however, that the provisions of.this Section shallnot apply if the death
or disability of the fireman was causedwhile such firemanwas gainfully employedby someone other than the respective fire department for which he was employed or contributedhis services.

"The provisions of this Sectionas amended shall be automatically applicable to any relief and retirement fund in which such Sectionwas includedby majority vote of themembers prior to the effective date of this amending Act, provided however that the paragraph providingbenefits for survivingbeneficiaries of a member of a,, 'fullpaid' fire department shall only be applicable to beneficiariesof a member of a 'full paid' fire department. Providedfurtherhowever, that the provisions of this Section shallnot be applicable to any particularrelief and retirement fund in which such Section was not included prior to the effectivedate of this amending Act until after an electionhas beenheld and the majority of the participatingmembers of that respective fund have voted to include the provisions contained in this Sectionwithin the Relief and Retirement Fund. At such election the effective date of these provisions shallalso be set. Added Acts 

### 1953, 53rd Leg., p* 352, ch. 

### 82, § 3, ;s,6a;ended

Acts 

### 1957, 55th Leg., pe 

### 617,ch. 275, 0 (Emphasisadded).

Section 12 of Article 6243e, Vernon's~ Civil Statutes, governs the amount of allowances to beneficiaries of deceased members, and is as follows:

"If any member of any department in any ,cityor town having a population 0r less than rive hundred thousand (500,000)according to the last .precedingFederal Census,which city or town is now within ormay hereafter comewithin the provisions of thisAct, who has been retired on allowance because of length of service or disability, shall thereafterdie from any causewhatsoor ifwhile in service any member shall die %?i'any cause growing,out 01 and/or in consequence of the performance of his duty; or shalldie from any causewhatsoever after he has become entitled to'an allowance or pension certificateand shallMrs. Marie Hudson, page 4 

### w+501)

leave survivinga widow, a child or childrenunder the age of eighteen 

### (18)years or a dependent parent, said Board of Trustees shall order paid a monthly allowance as follows: (a) to the widow, so long as she remain a widow and provided she shallhave married such member prior to his retirement, a sum equal to one-third 

### (l/3)of the average monthly salary of the deceased at the time ofhis retirement on allowance or death; (b) to the guardian of each child until such child reaches the age of eighteen 

### (18)years, the sum of Six Dollars ($6)permonth for part paid or volunteer Departments,and the sum of Twenty Dollars ($20)per month for fully paid Departments; (c)in the event thewidow dies after being entitled to her allowance as herein provided, or in the event there be no widow to receive an allowance, then the amount to be paid to the guardian of any dependentminor child or childrenunder the age of eighteen 

### (18)years shallbe Twelve Dollars ($12)per month for each such dependentminor child for part-paid or volunteer Departments,and the
sum of Forty Dollars ($40)per month for each such dependentminor child for fully paid Departments; (d)to the dependent parent only in case no widow
or child is entitled to allowance, the amount the widow would have received to be paid to but one (1)parentand such parent to be determinedby the Board of Trustees;providedhowever, that the total allowance to be paid all beneficiaries or deuendents as herein orovided shallnot exceed the monthlv allowance to be paid the pensionerhad he continued to live or be retired on allowance at the date of his death; and further provided, that if such amount be insufficient to pay the full schedule of benefits as herein provided, such benefits shall be prorated. Allowance or benefits payable to any minor child shall ceasewhen such child becomes eighteen 

### (18)years of age ormarries. As amended Acts 

### 1955, 54thLeg. wz., p. 

### 461, ch. 127 g 2; Acts 

### 1957, 55th p. 

### b17,ch. 275, 3 13.11 (Emphasisadded)

From the foregoingyou are advised thatwhen a fireman dies who was covered at the time of his death by the provisions of the Firemen's PensionLaw and said deathwas not caused by the performance of his duties as a fireman the total pension allowancewhich may be paid his beneficiariei cannot exceed themonthly allowance to be paid the pensionerhad heMrs. &rie Hudson, page 5 (WW-501)

continued to live or be retired on allowanceat the date of his death. The actual date of death is the time to be used in the calculation.

When a fireman dieswho at the time of his deathwas covered by the provisionsof the Firemen's Pension Law, and the deathwas not caused by the performanceof his duties as a fireman, the total pensionallowance payable to his beneficiaries cannot exceed the monthly allowance had he continued to live or be retired on allowance at the date of his death;~

Yours very truly,

WILL WILSON Attorney General of Texas

GPB:JH mc:zt:wb

APPROVED: OPINIONCOMMITTEE

Geo. P. Blackburn, Chairman Raymond V. Loftin, Jr. Jack Price John Reeves

REVIEWED FOR THEATTORNEY GENERAL

BY: W. V. Geppert