# The Attorney General of Texas January 27, 1978
JOHN L. HILL Attorney General

Honorable Gibson D.Lewis, Chairman Natural Resources Commission House of Representatives Capitol Station 2910 Austin, Texas 78767 Opinion No.Ii-U.22
Re: Retirement programs for volunteer firemen.

Honorable Hal H.Hood, Commissioner Firemen’s Pension Commission 503-F Sam Houston State Office Bldg. Austin, Texas 78701 Honorable Joe Resweber Harris County Attorney Houston, Texas 77002

Gentlemen: You have requested our opinion regarding a number of provisions of Senate Bill 411,Acts 1977,65th Leg., ch. 269, at 710,codified as article 6243e. 3, V.T.C.S., which creates a Fire Fighters Relief and Retirement Fund to provide benefits for volunteer firemen. Section 2of the statute provides in pertinent part:(b) Participation in the fund is optional. Any

governing body may, not later than 60 days after the effective date of this Act and in accordance with the usual procedures prescribed for other official actions of the governing body, elect to exempt itself from the requirements ofthis Act. Anyaction to provide for an exemption from the requirements of this Act may be rescinded bythe governing body at any time. (cl Every governing body shall contribute for each fire fighter at least $12for each month of qualified service beginning on the date the fire fighter enters the pension system. Contributions must be paid at least every six months. If the member fire department is situated in more than one political subdivision, the governing bodies of such political subdivisions shall

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contribute equally towards a total of at least $12for each fire fighter for each month ofqualified service. “Governing body” isdefined as

the governing body of any political subdivision of the state within which a rural fire prevention district created pursuant to the provisions of Chapter 57, Acts of the 55th Legislature, Regular Session, 1957(Article 2351a-6, Vernon’s Texas Civil Statutes), is situated or the governing body of any city or town within which a fire department subject to the provisions ofthis Act issituated. Sec. 1(13). “Qualified service” isdefined as

fire-fighting service rendered without monetary remuneration while a member ingood standing of a fire-fighting unit that has nofewer than 10active members, and aminimum of two drills each month, each drill two hours long, and each active member present at 60 percent of the drills and 25 percent of the fires, or fire-fighting service rendered without monetary remuneration while a member of a firefighting unit which includes paid fire fighters. Absence caused bymilitary duty does not affect qualified service.

sec. l(1). Youfirst ask whether acity which elects to exempt itself from the operation of Senate Bill 4ll is required to create a retirement system for its volunteer firemen under article 6243e, V.T.C.S. The latter statute authorizes every incorporated city with a regularly organized active fire department to establish a firemen’s retirement fund. Youstate that retirement funds have been created for a number of volunteer fire departments under article 6243e, wherein members contribute three to five dollars per year. Section 15(a)ofSenate Bill411 requires that [elvery fire fighter in the state who serves without monetary remuneration be a member of a solvent pension plan. Inour opinion, this provision isto be construed assubordinate to section 2(b),which permits agoverning body to “exempt itself from the requirements ofthis Act.” Ifa mm-

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city so elects, webelieve our courts would hold that the exemption is applicable to the entire statute, including section IS(a). ln our opinion, therefore, a city which votes to exempt itself from the operation of Senate Bill 411is not required by section 15(a)thereof to create a retirement system for its volunteer firemen under article 6243e. Younext ask whether members ofa volunteer fire department which fails to conduct two two-hour drills per month, or members who fail to attend 60percent of the drills and 25percent of the fires, qualify for membership in the Fund. The definition of “qualified service” authorizes n city to make contributions only for service performed in accordance with the above-listed standards. A city is not exempt from the provisions of Senate Bill 4ll, however, merely because its volunteer fire department does not presently meet the criteria required for

“qualified service,” since the conditions therefor might occur at any time. Such a city, unless it elected to exempt itself under section 2(b), must make contributions during any month in which any volunteer firemen render “qualified service” in accordance with the statute. Your next question is whether the definition of “qualified service” is applicable to any department having ten or more active members, without regard to whether any members receive compensation. A nonpaid fire fighter renders

“qualified service” in one of two ways: he is a member of a unit which contains aid fire fighters; or alternatively, he is a member ofan all-volunteer unit and the ET’ vounteer unit meets certain standards. If any member of the unit is paid, the requirements attached to the all-volunteer unit are not applicable. You also ask what constitutes “monetary remuneration” for purposes of the definition of“qualified service. e “Monetary” has been defined as

of or relating to money or to the instrumentalities and organixations by which money issupplied to the economy. Webster’s Third New International Dictionary 1457, 1458(3d ed. 1967). “Money” generally refers to

the legal tender, metallic coins or legal tender currency of the United States.

n v. State, 34S.W. 629, 630 (Tex. Grim. 1896).See Rodgers v. State, 448

x.Grim. 1969). “Money” isequivalent pcnsh,” and 8sarule, it includes checks as well as coin end currency. Raker and Taylor Drilling Co. v. Rlanchard Drilling Co., 363 S.W.2d 818, 820 (Tex. Civ. App. - Amarillo 1962, no writ). It does not, however, refer to “any other character of property, real or

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PO v. Clemmons 365 S.W.2d 384, 386(Tex. Civ. App. - Dallas 1963, %?:t& n~&ion, therefore “monetary remuneration” includes payment by coin, currency, check or money brder, but does not comprehend the furnishing offree water to volunteer firemen by the municipal water system or the furnishing of water at special rates.
Your next series ofquestions relate to the meaning of“governing body.” The Act defines governing body in two ways: (1)the governing body of any political subdivislon within which a rural fire prevention district is located or (2) the governlng body of any city or town within which a volunteer fire department is located. Avariety of political subdivisions may come within the first part of this deflnition. If n rural fire prevention district is located within a county, for example, the county is the political subdivision to make contributions. The county included within the terms of the statute, political subdivision within which arural fire Aschool district, for example, constitutes such n political subdivision. See Lewis v. Independent School District of City of Austin, 161S.W.2d 450, 452(Teq942) Ifavolunteer fire department exists within thatpolitical subdivision, the governing body thereof which has not elected to exempt itself from the Act is required to make contributions on behalf of those members who render nqualified service.” Furthermore, if more than one political subdivision elects to contribute on behalf of the same volunteer fire department, equal contributions are required. You inquire about the identity of the governing body for a volunteer fire department located within an unincorporated town which itself has no governing body. Since the second part of the definition of governing body cannot apply in that case, you must look to the first part to determine which political subdivision, if any, is required to make contributions. The definition of political subdivision turns on the existence ofarural fire prevention district; ifthe unincorporated town you inquire about islocated in a county which has norural fire prevention district, there isno political subdivlsion to contribute to the Fund. In such instances the statute isnot applicable. The county may be the political subdivision required to make contributions if a rural fire prevention district is located within it. If no rural fire prevention district is located within a particular county, the statute is not applicable to that county. Where a water district is located within the unincorporated town, the water district may constitute the political subdivision, if a rural fire prevention district islocated wholly within it. Ifboth the county ana the water district meet the definition, then both may be required to contribute. Finally, if the rural fire prevention district is situated within the town you describe, the district is a political subdivision required to contribute by the Act. See V.T.C.S. art. 2351a-6, S 10. -

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You also inquire about the effect of a city’s rescission of a resolution exemption itself from the terms of Senate Sill 411. Section t(b) provides that a governing body may “at any time” rescind %ny action to provide foran exemption from the requirements ofthis Act.”
In contract law rescission means an “undoing,” Adams v. Loftin, 1S.W.2d429, 430(Tex. Civ. App. - KlPaso 1927,no writ), and its effect istorestore the status quo prior to the formation of the contract. See Dreiling v. Home State Life Insurance Co., 515 P.2d 757, 766 (Kan. 19731.

-‘l%ii definition has been used to interpret a statute that permits rescission of an administrative order. Oakle d , 434 P.2d 868, 872 (Okln. 1967);Portland Traction Co. v. Hill, 352 re. 960). However, in its more or&ary sense, “rescind” is synonymous with

“repeal.” Webster%Third NewInternational Dictionary 1924,193O(3ded. 1967);see Rains v. Contra Costa 231P.2d 55, 56(Cal. 19511;Golconda Lend Minesx 350 P2d 221,223 d1005;1008 (Ky. 19601;City of Owensboro v. Board of Trustees, 19U

In our opinion, if a governing body acts to rescind its order exempting itself from the Act, its action will amount to nrepeal, which operates prospectively. See Galveston H. & H. R. Co. v. Anderson, 229 S.W. 998, 1001(Tex. Civ. App.- Galveston1920-w body will begin making its contributions at the time the rescission becomes effective. Finally, you ask whether the contributions imposed by Senate Bill 411are in contravention of article 3, section 52 of the Texas Constitution, where the volunteer fire department Is a chartered, private, nonprofit civic corporation. Article 3,section 52(a)forbids the Legislature

to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whntsoever, or to become astockholder insuch corporation.

... Asweobserved in Attorney General Opinion H-127(19731,

[tlhe current construction of [article 3,section 521isthat it does not prohibit the Legislature from authorizing a county, city or other political corporation or subdivision to spend its funds with private corporations for the achievement of publIc purposes.
... It is not unusual for political SubdivIsions to contract with private corporations to perform services or functions which the governmental unit might have provided itself.

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Id. at 4. Clearly, fire protection constitutes a “public purpose.” Articles 1069and m5 (271,V.T.C.S., specifically empower cities to provide for fire protection, and article 235la-1, V.T.C.S., furnishes authority for counties to do so. See also V.T.C.S. art. 235la-5. 338 S.W.2d 133, 140(Tern Attorney General Opini (1975)(county may not contribute publ&zgto ttorney General Opinions H-520 the construction of a livestock barn to be owned and operated by a private, nonprofit organization); H-397 (1974) (county may not become adues paying member ofa chamber of commerce). Inour opinion, the contributions imposed by Senate Bill 4ll are in no way violative of article 3,section 52oftbe Texas Constitution. SUMMARY
A city which elected to exempt itself from the terms of Senate Bill 411isnot required to create aretirement system for its volunteer firemen under article 6243e or any other statute. Acity, unless it exempted itself under section 2(a) of Senate Bill 4ll, must make contributions to the Fire Fighters Relief and Retirement Fund for any month during which any of its volunteer firemen render “qualified service” in accordance with the statute. “Monetary remuneration” includes payment by coin, currency, check or money order, but does not embrace the furnishing of free or discounted water. Ifa volunteer fire department isnot located within a city or town, any political subdivisions within which the department and a rural fire prevention district are wholly situated are required to make contributions to the Fund. A city which rescinds its resolution ofexemption isrequired to contribute on behalf of every person rendering “qualified service” the sum of twelve dollars per month commencing with the effective date of the rescission order. ‘The contributions imposed by Senate Bill 411are not in contravention ofarticle 3,section 52ofthe Texas Constitution. Verytruly yours,

Attorney General of Texas

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APPROVED:

3JY

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Opinion Committee ’ jst

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