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-paid and partvolunteer department may 

start participating in 

the Pension System after 

he has served several 

years in the department 

and has refused to partlcipate. 

letter requesting an 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 effeotlve August 23, 1963. 

"Iiarllngen~s Fire Department is composed 

of some Volunteer Firemen and some fully-paid 

Firemen. Several of their paid Firemen who have 

been In the Pire Department for a number of years 

but have not participated in the Firemen's Pension System are now requesting permission to 

start participating even though they are now 

over 35 years of age and have had the opportunity to participate for several years. 

"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 forfeited his ;lght to participate 

at this late date. . . . 

With regard to these facts, you ask a question which 

we quote as follows: 

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

"May I have your official ruling on 

whether or not a paid Fireman in a partpaid and part-volunteer Department may 

start partlclpatlng in the Pension System 

after he has served several years In the 

Department and has refused to participate." 

Acts, 55th Leg., 1957, Ch. 275, p. 617 (H.B. 68) 

became effective May 22, 1957. House Bill 68 amended Section 

IO of Article 6243e, Vernon's Civil Statutes, known as the 

Firemen's Relief and Pension Fund Act. The pertinent provlsions are as follows: 

"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 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 Retirement Fund 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 governing body 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 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 

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

On April 

II 

. . .it 

13, 1964, you advised us by letter that: 

has been the Departmental construction of Section 10 of the Firemen's Pension 

Law, as amended Acts 1957, 55th Legislature, 

that the phrase 'part-paid or volunteer department' means a fire department that has fully 

paid fIreme and volunteer firemen in the ssme 

department. 

Acts 58th Leg., 196 

8 

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 dlscussion are as follows: 

"Section 1. . . . 

'Sec. lOA In all cities having fully 

paid firemen where Firemen's Relief and Retirement Funds now exist or shall be created under 

the provisions of this Act and having a population of less than one hundred and eighty-five 

&ousand~b,OOO) Inhabitants according 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. 

(Emphasis added) 

'1 . . . 

"'(I) 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 

amendment shall continua 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..effectlve date of this'amendinent.' 

‘1 1 1 1’ 

. . . 

“sec. 7. All laws or parts of laws in 

conflict with the provisions of this Act are 

repealed to the extent of such confllot only." 

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

The provisions of Section lOA of House Bill 35 

pertain to all cities of less than 185,000 population having 

fully-paid firemen. The City of Harlingen, according to the 

last preceding Federal Census had a population of less than 

185,000. 

Section lOA(1) Is applicable to fully-paid firemen 

who were not active members of a 'Fund" at the effective date 

of House Bill 35. Therefore, its provisions have no bearing 

on the question you ask. Also, we find no other provisions In 

House Bill 35 which would authorize a Harlingen fireman who has 

been in the Fire Department for a number of years but has not 

participated In the City's Firemen's Relief and RetireTent Fund 

to now become eligible for participation in the 'Fund. 

It must be presumed that the Leglslature In enacting 

House Bill 35 had knowledge of the provisions of 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 expressly authorized the participation of 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's Relief and Retirement Fund are not In oonfliot 

with any of the provisions of House Bill 35 and must be given 

full force and effect. 

On the basis of the clear and unambiguous language’ 

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 department who has served several years in a 

department and,haa failed or refused to participate in the 

city's Firemen's Relief and Retirement Fund has forfeited 

his right to become a member and participate therein. 

SUMMARY 

A fully-paid fireman of a part-paid and 

part-volunteer department who has served 

several years In a department and 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-