NE-fc GENERAL

April 24, 1964

Mrs. Marie Hudson Firemen's Pension Austin, Texas

Dear Mrs. Rudson:

In your Opinion No. c- 248

Commissioner Re: Whether a paid fireman in a part-paidand partvolunteerdepartmentmay start participatingin the Pension System after he has served several years in the department and has refused to partlcipate. letter requestingan opinion from this office, - -- you submit certain facts which we quote as follow81

?he Firemen's Pension Board of Rarllngen, Texas, has requested a ruling from this office regarding Section lOA(1) of House Bill No. 35, which became effeotlveAugust 23, 1963. "Iiarllngen~s

Fire Departmentis composed of some VolunteerFiremen and some fully-paid Firemen. Several of their paid Firemen who have been In the Pire Departmentfor a number of years but have not participatedin the Firemen's Pension System are now requestingpermissionto start participatingeven though they are now over 35 years of age and have had the opportunity to participatefor severalyears. "It Is the oplnlon of this office that a Fireman who was active in the Fire Department before August 23, 1963, but who had elected not to participate in the Firemen's Pension System has forfeitedhis ;lght to participate at this late date.

. . . With regard to these facts, you ask a questionwhich we quote as follows:

-1202-Mrs. Marie Hudson, page 2 (C- 248 )

"May I have your officialruling on whether or not a paid Fireman in a partpaid and part-volunteer Departmentmay start partlclpatlngin the Pension System after he has served severalyears In the Departmentand has refused to participate." Acts, 55th Leg., 1957, Ch. 275, p. 617 (H.B. 68) became effectiveMay 22, 1957. House Bill 68 amended Section IO of Article 6243e, Vernon's Civil Statutes,known as the Firemen'sRelief and Pension Fund Act. The pertinentprovlsions are as follows:

"Sec. 10. Each city or town in which a Firemen'sRelief and RetirementFund has been createdprior 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 governingbody of such city or town, shall henceforth be authorized to deduct from the salary or compensationof each fireman who 1s participating in such Fund when this emending 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 Flremen"8 Relief and RetirementFund Trustees of such flreman"s city or town, of a statement in writing under oath that he desires to partlclpate in the benefits from such Fund,.

. .and authorizing said city or town or the governingbody thereof to deduct not less than one (1) per centum nor more than three (3) p,er centum, a s . Such money so deducted from salariesor compensationor agreed to be paid to become and form a part of the Fund herein designatedand establishedas Firemen'sRelief and RetirementFund of that

-1203-Mrs. Marie Rudson, page 3 (c- 248 )~

On April II

. . .it 13, 1964, you advised us by letter that:

has been the Departmentalconstructionof Section 10 of the Firemen's Pension Law, as amendedActs 1957, 55th Legislature, that the phrase 'part-paid or volunteerdepartment' means a fire departmentthat has fully paid fIreme and volunteer firemen in the ssme department. Acts 58th Leg., 1968 Ch. 50, p.,79 (LB. 35)s amended Section lOA, Article 243e Vernon's Civil Statutes. The provisions of House Bill 35, 56th Legislature,1963, most pertinent to our dlscussionare as follows:

"Section1.

. . . 'Sec. lOA In all cities having fully paid firemen where Firemen'sRelief and Retirement Funds now exist or shall be createdunder the provisions of this Act and having a population of less than one hundred and eighty-five &ousand~b,OOO) Inhabitantsaccording to the receding Federal Census, the city or the governbd f th ity shall deduct an amount equal t?noOl~s~ tha: &ree per cent (3%) nor more than six per cent (6s) from the monthly salary or compensation of each participating member fireman. (Emphasisadded) '1

. . . "'(I) Each person who is an active member of a Firemen'sRelief and RetirementFund previously organizedand existingunder the laws of this State at the effectivedate of this amendment shall continuaas 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..effectlve date of this'amendinent.'

‘1 1 1 1 ’

. . .

“sec. 7. All laws or parts of laws in conflictwith the provisionsof this Act are repealed to the extent of such confllot only."

-1204-Mrs. Marie Hudson, page 4 (C- 24.8)

The provisionsof Section lOA of House Bill 35 pertain to all cities of less than 185,000populationhaving fully-paid firemen. The City of Harlingen,according to the last precedingFederal Census had a population of less than 185,000. Section lOA(1) Is applicableto fully-paidfiremen who were not active members of a 'Fund"at the effectivedate of House Bill 35. Therefore, its provisionshave no bearing on the questionyou ask. Also, we find no other provisionsIn House Bill 35 which would authorizea Harlingen fireman who has been in the Fire Department for a number of years but has not participatedIn the City's Firemen'sRelief and RetireTentFund to now become eligible for participationin the 'Fund.

It must be presumed that the LeglslatureIn enacting House Bill 35 had knowledge of the provisionsof Article 6243e, Vernon's Civil Statutes. St. Louis B&M Ry. Co. v. Marcofich, 221 S.W. 582 (Comm.App.19’20). In House Bill 33 the Legislature could have expresslyauthorizedthe participationof these firemen in a Fund but did not do so. It Is our opinion that the provIsIons of Section 10 of Article 6243e, Vernon’s Civil Stat-. utes, which provide that the failure or refusal to participate forfeits the right to participate in any of the benefits from the FiFemen'sRelief and RetirementFund are not In oonfliot with any of the provisionsof House Bill 35 and must be given full force and effect.

On the basis of the clear and unambiguouslanguage ’ of Section 10 of Article 6243e, Vernon's Civil Statutes, it is our opinion that a fully paid fireman of a part-paid and part-volunteer

departmentwho has served severalyears in a departmentand,haa failed or refused to participate in the city's Firemen'sRelief and RetirementFund has forfeited his right to become a member and participatetherein.

SUMMARY A fully-paidfireman of a part-paid and part-volunteer

departmentwho has served severalyears In a departmentand has failed or refused to participate in the city's Firemen's Relief and Ret,lrement Fund has forfeited his right to become a member and participate therein.

-1205-_-

Mrs. Marie Hudson, page 5 (C- 248 )

Very truly yours, WAGGONER CARR Attorney C+en

WilliemS, Jr. Assistant 1RW:mkh APPROVED: OPINION COMMITTEE W. V. ffeppert,

Chairman Cecil Rotsch Norman Suarez Robert Smith Llnward Shivers APPROVEDFORTHR ATTORNEY GENERAL BY: Stanton Stone

-1206-