The Honorable Hal H. Hood

Fireman’s Pension Commissioner 503-f Sam Houston State Office Bldg. Austin, Texas 78701 Opinion No. H-445 Re: Eligibility ofpaid fireman who also works as volunteer fireman during off-duty hours, to participate inpension plans covering each position and receive pensions for past services

- that as apaid fireman and as a volunteer fireman. Dear Commissioner Hood:

You have submitted two requests for an opinion that involve paid firemen, who during their off-duty hours, serve as volunteer firemeh. You ask whether these firemen can, upon retirement, receive pensions for their service in each capacity.

Articles 6243a, 6243b. 6243c, 6243d, 6243e and 6243f, V. T.C.S.., provide for the creation ofpensions for paid firemen tobe disbursed from a number of trust funds which are established for cities in different population brackets. In addition, article 6243e provides that volunteer firemen (as well as paid firemen) can participate inthe pension fund created by such article and denominated the Fireman’s Relief and Retirement Fund.

InAttorney General Opinion H-7 (1973) we listed three impediments to the holding’of dual offices: (1) the separation ofpowe.r requirement of article 2, section 1ofthe Texas Constitution; (2) the limitations imposed by sections 33 and 40 ofparticle 16 ofthe Texas Constitution; and (3) the common law doctrine that one person cannot hold two incompatible offices., See also Attorney General Letters Advisory Nos. 55 (1973) and 65 (1973).

It is, of course, apparent that there is noviolation ofthe constitutional separation ofpowers requirement since both positions involved are ofthe executive branch of government.

Section 40 of article 16 ofthe Texas Constitution prohibits one person from holding “more than one civil office of emolument” (with exceptions not applicable here). Section 33 of article 16bars the “Accounting Offices ofthis State” from making any payments to any person holding “more than one civil office of emolument, inviolation ofSection 40. “

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While ,avolunteer fiieman is not paid for his service. the proper discharge ofhis duties as avolunteer will result inhis eligibility for apension (see section 6of article 6243e) and it cannot be said that the position ofvolunteer Gman is without emoluments since his labors in such capacity will result in “pecuniary gain or advantage. ” Irwin v. State, 177 S.W. 2d 976 (Tei. Crim. App. 1944); Attorney General Letter Advisory No. 85 (1974).

However, we are of ihe opinion that avolunteer fireman does not occupy a “civil office” within the meaning of section 40 ofarticle 16.

One requirement of a “civil office” is that a “public employment be created by law

. . . which is continuing and not intermittent or occasional innature. IV Attorney General Letter Advisory No. 63 (1973). We think that such requirement is not satisfied inthe case of avolunteer fireman who serves only inthe case of afirecreated emergency andwho, adsyou have informed us, is required, to attend only one-fourth ofthe fires responded toby the department ofwhich h$ is a member to be eligible for apension.

Accordingly, since avolunteer fireman does not occupy a civil office, the restrictions of sections 33 and 40 ofarticle 16will not foreclose narticination in and receipts from two pension funds., See also Attorney General Letters Advisory 81 (1974) and 85 (1974).

There remains the question ofwhether the common law doctrine of incompatibility will bar the holding of aposition as paid fireman and aposition of volunteer fireman at the same time. Offices are incompatible where their duties are or may be inconsistant or in conflict. State v. Martin, 51 S.W. 2d 815 (Tex. Civ. App. --San Antonio 1932, nowrit). Rather than being “in conflict, ” the two positions may very well complement each other since the duties of each are consistent with the other. See Attorney General Letter Advisory No. 30 (1973). - Nevertheless, while there may be no legal incompatibility which would foreclose,the simultaneous holding ofpositions as apaid and avolunteer fireman, any employer has the right to insist that an employee “devote as much time to his employment as was contemplated at the time he was employed. ” Attorney General Letter Advisory No. 62 (1973). This, of course, is amatter to be determined by the fire department or departments involved.

We conclude t:hat:there are no general legal impediments to one person holding positions as a p&idfireman and avolunteer fireman at the same time and he may participate inthe pension plans established for each position. See also section 67 ofarticle 16, T.exas Constitution. Of cburse the statutes involving each particular pension plan should be consul.ted to determine ifthere are statutory barriers to specific combinations.

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SUMMARY A paid fireman, who also serves as avolunteer fireman, may participate inpension plans covering both positions, and receive apension for service in each position, Very truly yours,

L. HILL Attorney General of Texas
PPROVED: /

Opinion Committee jad:

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