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 of paid fireman 

who also works as volunteer fireman 

during off-duty hours, to participate 

in pension plans covering each position 

and receive pensions for past services 

- that as a paid 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 of pensions for paid firemen to be 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 in the pension fund created by such article and denominated the 

Fireman’s Relief and Retirement Fund. 

In Attorney General Opinion H-7 (1973) we listed three impediments to 

the holding’of dual offices: (1) the separation of powe.r requirement of article 2, 

section 1 of the Texas Constitution; (2) the limitations imposed by sections 33 and 

40 of particle 16 of the 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 no violation of the constitutional 

separation of powers requirement since both positions involved are of the executive branch of government. 

Section 40 of article 16 of the Texas Constitution prohibits one person 

from holding “more than one civil office of emolument” (with exceptions not applicable here). Section 33 of article 16 bars the “Accounting Offices of this State” 

from making any payments to any person holding “more than one civil office of 

emolument, in violation of Section 40. “ 

p. 2911 
. - 

The Honorable Hal H. Hood - Page 2 

While ,a volunteer fiieman is not paid for his service. the proper discharge of his duties as a volunteer will result in his eligibility for a pension (see 

section 6 of article 6243e) and it cannot be said that the position of volunteer 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 a volunteer fireman does not occupy 

a “civil office” within the meaning of section 40 of article 16. 

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

created by law . . . which is continuing and not intermittent or occasional in nature. IV 

Attorney General Letter Advisory No. 63 (1973). We think that such requirement is 

not satisfied in the case of a volunteer fireman who serves only in the case of a firecreated emergency and who, ads you have informed us, is required, to attend only 

one-fourth of the fires responded to by the department of which h$ is a member to 

be eligible for a pension. 

Accordingly, since a volunteer fireman does not occupy a civil office, the 

restrictions of sections 33 and 40 of article 16 will 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 of whether the common law doctrine of incompatibility will bar the holding of a position as paid fireman and a position 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, no writ). 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 of positions as a paid and a volunteer 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 a matter 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&id fireman and a volunteer fireman at the same time and he 

may participate in the pension plans established for each position. See also section 

67 of article 16, T.exas Constitution. Of cburse the statutes involving each particular pension plan should be consul.ted to determine if there are statutory barriers 

to specific combinations. 

p. 2912 
The Hono~rable Hal H. Hood - Page 3 

SUMMARY 

A paid fireman, who also serves as 

a volunteer fireman, may participate 

in pension plans covering both positions, 

and receive a pension for service in each 

position, 

Very truly yours, 

L. HILL 

Attorney General of Texas 

PPROVED: 

/ 

Opinion Committee 

jad: 

p. 2913