JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12549 

Austin, TX. 79711. 2548 

5121475-2501 

Telex 9101S74-1,387 

Telecopier 512,475.0266 

714 Jackson, Suite 700 

Dallas, TX. 75202.4506 

2141742-8944 

4824 Alberta Ave.. Suite 180 

El Paso, TX. 79905.2793 

915/533-3484 

P 

‘001 Texas, Suite 700 

Houston, TX. 77002.3111 

713/223-5886 

806 Broadway. Suite 312 

Lubbock, TX. 79401.3479 

0061747-5230 

4309 N. Tenth, Suite S 

McAllen, TX. 79501.1685 

5121682-4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 78205.2797 

512/225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General’ of Texas 

December 29, 1983 

Honorable Lie F. Jacks& 

Chairman 

Committee on Employment Practices 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Opinion No. ~~-108 

Re: Whether the provisions 

of article 6243e. V.T.C.S.. 

setting a maximum age of 35 

for beginning eligibility in 

municipal fire department 

pension funds violate federal 

age discrimination statute 

You have requested our opinion on whether certain provisions of 

article 6243e, V.T.C.S., setting a ~tiximum age of 35 for beginning 

eligibility in municipal fir&department pension funds, violate the 

federal age discrimination statute, which protects oersons sees 40 to 

70. See 29 U.S.C. $623, et seq. Specifically. you-point to-sections 

lOA( 1+2(f),. and 10B of article 6243e. 

Subsection 623(a)(l) of the Age Discrimihation'in Employment Act 

makes it unlawful for an employer 

to fail or refuse to hire or to discharge any 

individual or otherwise discriminate against any 

individual with respect to his compensation, 

terms, conditions, or privileges of employment, 

because of such individual's age. 

Article 6243e, V.T.C.S., which establishes the "Firemen's Relief and 

Retirement Fund," violates the federal provision, it is suggested, 

because it establishes a maximum age of 35 years for eligibility to 

fund membership and makes membership In the fund a condition of 

employment, thus establishing a maximum entry age for hiring purposes. 

We do not agree. Section 10B of article 6243e specifies that no 

person shall be eligible to begin participation in a fund on account 

of prior service who was more than 35 years of age "at the time he 

began his service as a fireman for the first time." Sections lOA 

and lOA-2(f), which concern cities of different sizes, both state the 

following: 

Each person who shall hereafter become a fireman 

in any city which has a Firemen's Relief and 

Retirement -Fund to which he is eligible for 

membership, shall become a member of such Fund as 

p. 454 
Honorable Lee F. Jackson - Page 2 (JM-108) 

a condition of his appointment . . . provided, 

however, that no person shall be eligible to 

membership in any such Fund who is ,more than 

thirty-five (35) years of age at the time he first 

enters service as a fireman . . . . (Emphasis 

added). 

The language emphasized above makes it obvious that only those 

persons eligible to participate in the fund must do so as a condition 

of employment, and that the hiring of persons not eligible for 

membership therein because of their age ("at the time he first enters 

service as a fireman") IS anticipated. 

Aside from other reasons why the congressional enactment might 

not apply, subsection 623(f)(2) of the federal law expressly states 

that it shall not be unlawful for an employer 

to observe the terms of... any bona fide 

employee benefit plan such as a retirement, 

pension, or insurance plan, which is not a 

subterfuge to evade the purposes of this chapter, 

except that no such employee benefit plan shall 

excuse the failure to hire any individual . . . . 

In Alford v. City of Lubbock, 664 F.2d 1263 (5th Cir. 1982). 

cert. denied, 456 U.S. 975 (1982), the court held that a provision 

found in article 6243h. V.T.C.S. (repealed), establishing the Texas 

Municipal Retirement System -- a provision comparable in all respects 

to the article 6243e passages -- was not in any way violative of the 

federal age discrimination law. 

We advise that sections lOA( lOA-2(f), and 10B of article 

6243e, V.T.C.S., are not in violation of the federal am 

discrimination act, 29 U.S.C. 623, by reason of setting a maximum age 

of 35 years for beginning eligibility in a municipal fire department 

pension fund. Other questions need not be addressed. 

SUMMARY 

Sections lOA( lOA-2(f), and 10B of article 

6243e. V.T.C.S., are not in violation of the 

Federal Age Discrimination Act, 29 U.S.C. 623, by 

reason of setting a maximum age of 35 years for 

beginning eligibility in a municipal fire 

department pension fund. 

Very truly your d-h m 

JIM MATTOX 

Attorney General of Texas 

p. 455 
. 

Honorable Lee F. Jackson - Page 3 (JM-108) 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Bruce Youngblood 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Jon Bible 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton 

Bruce Youngblood 

P. 456