Hon. G. F. WKllisms

Firemens Pension Commissioner Austin, Texas Opinion No. V-660

Doar Sir: Re: Eligibility of a city Firemen's Pension Fund to share 1 .' ~~~,' in the State appropriation when the city refuses to .~' contributematchin& funds.

Your letter requesting an opinionupon~the above titled subjectmatter is as follows:

"Senate Bill No. 84 enacted during the regular session of the Fiftieth LeSislature added Section 10A to H. B. 258, Regular Session Forty-Fifth Legislature and provides that cities having paid firemen who pay into the Firemen's Relief and Retirement Fund, shall donate an equal amouzkinto that fund. The Act was effeoti~ve on May 13, 1947, and your department ruled, Opinion No,. V-393, that the cities shouldmake this payment into the fund retroactive to January 1, 1947.

"QUESTION

"Should the city refuse tomatch the payments made into the.fund by the-firemen, would the Firemen's Disability and Retirement Fund of that City stillbe eligible to receive their pro rata share of the Appropriation?"

The Firemen's Relief and Retirement Fund was setup by House Bill No. 258 of the45th Legislature at its Regular Session. The Act provided for the financing of the fund.

### ‘ZS.,$ Hon. G. F. Willi&ns - Page 2 (V-660)

In the case of American Alliance Insurance Companyv. Board of InsuranceCommissioners, 126 S.W. (2)741. it was held that theprovisions nrovidinfr. &ids and revenues for the Firemen'sRelief and R& tirementFund by levying occupation or license taxes of 2 per centum of all grosspremium receipts levied and.assessed agsinnst insurance companies was unconstitutional.

By Senate Bill No. 84 the~50th Legislature amendedHouse Bill No.~258 by the addition thereto of Section 10a providing as follows:

"All citieshaving fully paid firemen ,whereFiremen's Relief and Retirement Fund has been created under the provisions of thisAct, shall annually contribute and appropriate to such fund.an amount equal to the annual contributionsmade by such fully paid firemen under the provisions of thisAct, which such contributions shallnot exceed .thesum of Three (3%)per centum of the Fire Department's annual payroll, and such cities shalldeposit the same to the credit of the Firemen's Relief and Retirement Fund tobe used with othermonies in saidfund for the benefits provided for under theprovisions of thisAct."

The emergency clause for Senate.BillNo. 84 .statedthe holding in American Alliance Insurance Company v. Board of Insurance Commissioners as creating the necessity for immediate passage.

~'As you state,House Bill 258, as amendedby Senate Bill 84, does provide that cities having fully paid firemen who pay into the Firemen!a~Relief and Retirement Fund, shall contribute annually an equal amount to that fund.

The,~current

appropriation to the Firemen's Pension Commissioner reads: "5: Firemen's Relief~snd Retirement Fund, $300,0b0.00"for eachyear of the biennium. (50thLeg., R. S., p. 842).

There is no qualification or limitation whatsoeverattached to this item 5, nor is there anythingRon. G. F. Williams - Page 3 (.V-660)

limiting or qualifying it to be found in the general provisions accompanying the appropriationfor State Departments and Agencies in which this appropriation is found. These consideratjons impel us to the view that the State appropriation is unqualifiedly dedicated to the specific purpose for which it was made, and that the Legislature assumed that the cities concerned would comply with the statute inmatching Firemen's contributions. So long as there is a specifio-appropriationas we now have, such firemen would be entitled to receive their pro rata share of the appropriation regardless of the fail.ureof the city tomatch the Firemen's Contribution.

SWARY

Where paid firemen havessuffered.their salary deductions as contributions to the .FirementsReilafand Retirement Fund under H. .B.258 of the 45th Legislature (Reg. Ses.) they are eligiblesto receive their prorata share of the State appropriationnotwithstandina the tits has.refused tomatch their salary contributions

0S:wb

: as contemplatedby law.

Averytrulyyours,

ATTORREY.GENERALCP TEXAS

Assistant 

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