JIMMATTOX 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

HonorableLie F. Jacks& Chairman Committeeon EmploymentPractices TexasHouse of Representatives P. 0. Box 2910 Austin,Texas 78769 OpinionNo. ~~-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 fundsviolate federal age discriminationstatute

You have requested our opinion on whether certain provisions of article 6243e, V.T.C.S., setting a ~tiximumage of 35 for beginning eligibility in municipal fir&department pension funds, violate the federal age discriminationstatute,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 theAge Discrimihation'inEmploymentAct 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'sage. 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 establishinga maximum entry age forhiringpurposes. We do not agree. Section 10B of article 6243e specifies thatno 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, shallbecome a member of such Fund as
p.454HonorableLee 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 timehe first enters service as a fireman . . . . (Emphasis added). The language emphasized above makes it obvious that only those persons eligible toparticipate in the fundmust do so as a condition of employment, and that the hiring of persons not eligible for membership thereinbecause of their age ("at the time he first enters serviceas 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 shallnot be unlawful foran 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 tohire 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 federalage discriminationlaw. 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 discriminationact, 29 U.S.C. 623, by reason of settinga maximum age of 35 years for beginning eligibility in a municipal fire department pension fund. Other questionsneed not be addressed. SUMMARY Sections lOA( lOA-2(f), and 10B of article 6243e. V.T.C.S., are not in violation of the FederalAge DiscriminationAct, 29 U.S.C. 623, by reason of setting a maximum age of 35 years for beginning eligibility in a municipal fire departmentpension fund.
Very trulyyour 

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JIM MATTOX AttorneyGeneralof Texas

p. 455. HonorableLee F. Jackson - Page 3 (JM-108)

TOM GREEN FirstAssistantAttorneyGeneral DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby BruceYoungblood AssistantAttorneyGeneral APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Jon Bible ColinCarl SusanGarrison JimMoellinger Nancy Sutton BruceYoungblood

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