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 2 of 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 of this Act. Any action to provide for an 

exemption from the requirements of this Act may be 

rescinded by the governing body at any time. 

(cl Every governing body shall contribute for each 

fire fighter at least $12 for 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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Honorable Qibson D. Lewis 

Honorable Hal H. Hood 

Honorable Joe Resweber - Page 2 (R-1122) 

contribute equally towards a total of at least $12 for each 

fire fighter for each month of qualified service. 

“Governing body” is defined 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 of this Act is situated. 

Sec. 1 (13). “Qualified service” is defined as 

fire-fighting service rendered without monetary remuneration while a member in good standing of a fire-fighting unit 

that has no fewer than 10 active members, and a minimum 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 by military duty does not affect qualified service. 

sec. l(1). 

You first ask whether a city 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. You state 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) of Senate Bill 411 requires that 

[el very fire fighter in the state who serves without 

monetary remuneration be a member of a solvent pension 

plan. 

In our opinion, this provision is to be construed as subordinate to section 2(b), which 

permits a governing body to “exempt itself from the requirements mm- of this Act.” If a 

p. 4584 
Honorable Gibson D. Lewis 

Honorable Hal H. Hood 

Honorable Joe Resweber - Page 3 (H-lU2) 

city so elects, we believe 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 411 is not required by 

section 15(a) thereof to create a retirement system for its volunteer firemen under 

article 6243e. 

You next ask whether members of a volunteer fire department which fails to 

conduct two two-hour drills per month, or members who fail to attend 60 percent 

of the drills and 25 percent 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 of an all-volunteer unit and the 

ETvo ’ unteer 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 is supplied 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, 34 S.W. 629, 630 (Tex. Grim. 1896). See Rodgers v. State, 448 

x. Grim. 1969). “Money” is equivalent pcnsh,” and 8s a rule, 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 

p. 4585 
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Honorable Gibson D. Lewis 

Honorable Hal H. Hood 

Honorable Joe Resweber - Page 4 (H-ll22) 

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 of free water to volunteer firemen by the municipal water system or the 

furnishing of water at special rates. 

Your next series of questions 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. A variety 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 a rural fire 

A school district, for example, constitutes 

such n political subdivision. See Lewis v. Independent School District of City of 

Austin, 161 S.W.2d 450, 452 (Teq942) If a volunteer 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 of a rural fire prevention district; if the unincorporated town 

you inquire about is located in a county which has no rural fire prevention district, 

there is no political subdivlsion to contribute to the Fund. In such instances the 

statute is not 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 is located wholly within it. If both 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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Honoreble Gibm D. Lewis 

Honorable Hal H. Hood 

Honorable Joe Resweber - Page 5 CR-lU21 

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 for an exemption 

from the requirements of this Act.” 

In contract law rescission means an “undoing,” Adams v. Loftin, 1 S.W.2d 429, 

430 (Tex. Civ. App. - Kl Paso 1927, no writ), and its effect is to restore 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 New International Dictionary 1924,193O (3d ed. 1967); see 

Rains v. Contra Costa 231 P.2d 55, 56 (Cal. 19511; Golconda Lend Minesx 

350 P 2d 221, 223 

d 1005;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 n repeal, which operates prospectively. See 

Galveston H. & H. R. Co. v. Anderson, 229 S.W. 998, 1001 (Tex. Civ. App. - 

Galveston 1920-w body will begin making its contributions 

at the time the rescission becomes effective. 

Finally, you ask whether the contributions imposed by Senate Bill 411 are 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 a stockholder in such corporation. . . . 

As we observed in Attorney General Opinion H-127 (19731, 

[tl he current construction of [article 3, section 521 is that 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. 

p. 4587 
Honorable Gibson D. Lewis 

Honorable Hal Ii. Hood 

Honorable Joe Resweber - Page 6 (H-13.22) 

Id. at 4. Clearly, fire protection constitutes a “public purpose.” Articles 1069 and 

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 a dues paying member of a chamber of commerce). In our 

opinion, the contributions imposed by Senate Bill 4ll are in no way violative of 

article 3, section 52 of tbe Texas Constitution. 

SUMMARY 

A city which elected to exempt itself from the terms of 

Senate Bill 411 is not required to create a retirement system 

for its volunteer firemen under article 6243e or any other 

statute. A city, 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. If a volunteer fire department is not 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 of exemption is required 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 411 are not in contravention of article 3, section 52 of the Texas Constitution. 

Very truly yours, 

Attorney General of Texas 

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Honorable Gibson D. Lewis 

Honorable Hal H. Hood 

Honorable Joe Reswebar - Page 7 (H-lEW 

APPROVED: 

3JY 

a& 

Opinion Committee ’ 

jst 

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