CW*Wr”RD c. LwAR-rIN AUSTIN. %-EZXAS7

*-l-roRNEY

GRNnGRAI. Aiiin#d 

### by Crap@ 0,

May15 , 1970 

### Bd.of bimD.n'm swiof andRetianmt Fund 456 su Pdpage49,438
Mrs. Marie Winters OpiniOn NO. M-631 Firemen's Pension Commissioner 1010 Sam Houston Building Re: Constructionof Section 

### 7F, Austin, Texas 

### 78701 Article 6243e,Firemen's Rellef~and,RetirementFund Act,~S.B:473, Acts;Glst Leg., R.S., 1969, ch. 

### 768, Dear Mrs. Winters: p. 2281.

In your letter requesting an opinion from this office, you submit the following facts:

"Most of the thirty-seven (37) fully paid fire departments that participate in the State Firemen's Pension System are having actuarial studiesmade and increasingbenefitsas provided unde,rSection 7F. Three of these departments, Amarillo, Lubbock and Abilene have raised benefits which, in my opinion, are not permissible under Section 7F. "Amarilloand Lubbock have voted to pay a lump sum of 

### $2,500.00to a retiring firemanplus his regularmonthly pension. No lump sum payment Is provided in the Act; however, a lump summay be permissible to firemen,however, the two townsmentioned have also voted to pay a lump sum of $2,5OO.OO to the widow of a fireman who dies after the new benefits are voted In." With regard to these facts you ask the following questions: “May I have your official ruling on whether or not the lump sum to firemen is legal and $1~0 are changes to widows benefits legal. 0 D
. Section 7F was Initial1 amended by S.B. 397, Acts 61st Leg., R.s., 1969, chapter 17 %, Section 

### 3,page 

### 508,and

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Mrs. MarieWinters, page 2 (M-631)

provides as follows:

"Sec. 3. Section 7F, Chapter 125,Acts of the 45th Legislature,Regular Sessioh; 1937, (Article 6243e,Vernon's Texas Civil Statutes) as added by'sectlon 4, Chapter 167, Acts of the 60th Legislature,Regular Session, 1967, is amended to read as follows:
"'Sec. 7F. In cities of less than one hundred eighty-five thousand (185,000),according to the last precedingFederal Census, the monthly,pension allowance as provided forunderSections 6, 7 and 7A of this Act, and In cities of more than one hundred eighty-five thousand (185,000)the monthly pension allowance as provided for under Sections 6B, 7B, and 76 of this Act, may begIncreasedprovided that: "'(1) the Increase Is first approvedby an actuary qualifiedby training and experience in the field of retirementprogramming and who is selectedby a four-fifthsvote of the Board of Trustees of the Firemen'sRelief and Retirement Fund;"'(2) a majority of the participatingmembers of the pension fund vote for the Increased ,monthlypension allowanceby a secretballot; "'(3) the increaseapplies only to active full time firemen In the department at the time of the Increase and those who enter the department thereafter.'" Section 7F was subsequentlyamended during the same session of the Legislatureby S.B. 473, Acts 61st Leg., R.S., 1969, chapter 768, Section 1, p* 2281, and provides as follows:

"Sec. 7FF. This section applies to all cities and townswhich are now within or which may hereafter come wfthin the provisions of this Act. The Board of Trustees, as prescribedby law, of any such city or town may modify or change In any manner whatsoever any of the benefits provided hereunder and may modify or change in any manner

-3020-Mrs. Marie Winters, page 3(M-631)

whatsoever any of the eligibilityrequirements for suchbenefits provided that: "(1) the change or modification 1s first approvedby a qualified actuary selectedby a four-fifths vote of the Board of Trustees of the Firemen's Relief and RetirementFund; such qualified actuary shall (a) if an Individual,be a Fellow of the Society of Actuaries or a Fellow of the Conference of Actuaries in Public Practice or a Member of the AmericanAcademy of Actuaries;

“(2) a majority of the participatingmembers of the pensionfund vote for the change or modification by a secretballot; "(3) the change or modificationapplies only to active full time firemen in the department at the time of the change ormodification and those who enter the department thereafter; and - "(4) the change or modificationdoes not deprive a member, without his written consent, of a right to receive benefits hereunderwhich have alreadybecome fully vested andmatured in suchmembereH (Emphasisadded.)
S.B. 473, in authorizing cities or towns to modify or change in any manner whatsoever all of the pensionbenefits provided for in Article 6243e, and in addition authorizing the cities to modify or change in anymanner whatsoever any of the eligibilityrequirements for such benefits,broadens considerably the scope and application of Section 7F as amendedby S.B. 397. The Legislature in granting the cities suchbroad authority to operate their individualFiremen'sRelief and PensionFund is presumed to have acted with full knowledge of all existing statutes, especially those dealingwith the subjectmatter of the new statute; that 1s S.B. 473. Garner v. Lumberton Independent School District, 430 S.W.2d 418 (Tex,Civ.App.19b8, no writ).

Under the broad authority of S,B. 473> supra, the Board of Trustees of the Firemen'sRelief and RetirementFund Trustees of a town or citywould be authorized9under the prescribedprocedure, to modify or change any existing pensionbenefit provided for in Article 6243e,Vernon"s Civil Statutes, the Firemen's Relief and Retirement Fund Act. This authoritywould include the

-3021-Mrs. Marie Winters, page 4(m-631)

granting of a lump sum payment In addition to a regularmonthly pension to those firemen or their survivorswho were active fulltime firemen in the department on the date the additional lump sum payment is voted on and adopted by themembership and those who entered the department after such date as active full-time firemen. This would preclude any pensionmodification or change In the form of an additional lump sum payment in pensionbenefits to retired firemen or their survivors.

Section 6a, Article 6243e, contains a provision similar to Section 7F, Article 6243e, which requires an election for the adoption of additionalpensionbenefits. In construing this Section, Attorney General's OpinionWo. WW-1168 (1961)holds:

I!

. . . those personswho have 'retired'and who have received retirementbenefits prior to the election discussed above have no right to participate in or otherwisereceive benefits under Section 6a of Article 6243e,Vernon's Civil Statutes.U
It is our opinion that this reasoning is applicable to the constructionof the provisions of Section 7F.

Therefore, on the basis of the foregoingdiscussion, It is our opinion that under the provisions of Section 7F, Article 6243e, Firemen'sRelief and Retirement FundAct (S.B. 473, Acts 61st Leg., R.S., 1969, ch. 768, p. 2281), that a lump sum payment in addition to a regularmonthly pension is authorized to be paid to a retired fireman or his survivor if such additional paymentwas adopted at the time such firemanwas an active fulltime fireman In the department or prior to the time such fireman entered the departmentas an active full-time fireman.
SUMMARY Under the provisions of Section 7F, Article 6243e, Firemen's Relief and Retirement Fund~.Act (S.B. 4 3, Acts 61st Leg., R.S., 1969, ch. 768, p* 2281

1 a lump sum payment, In addition to a regularmonthly pension, is authorized to be paid to a retired fireman or his survivor, if such additionalpaymentwas adopted at the time he was an active full time fireman in the department or prior to the time such fireman entered the department as an active full-time fireman.

-3022-Mrs. MarieWinters, page 5 (M-631)

Preparedby Ivan R. Williams, Jr. Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Acting Co-Chairman Sam Jones Malcolm Quick Jack Sparks Houghton Brownlee
MEADE F. GRIFFIN Staff Legal Assistant
ALFREDWALKER Executive Assistant
NOLA WRITE First Assistant

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