Texas Administrative Code › Title 34 - PUBLIC FINANCE › Part 11 - TEXAS EMERGENCY SERVICES RETIREMENT SYSTEM › Chapter 304 - MEMBERSHIP IN THE TEXAS EMERGENCY SERVICES RETIREMENT SYSTEM › Section 304.4 - Employees of Participating Departments

Current through Reg. 49, No. 28; July 12, 2024
(a)
				In this section, "Code" means the Internal Revenue Code of 1986, as
				amended.
(b) Effective September 1,
				2019, the 86th Texas Legislature adopted H.B. 3247 which amended §
									862.002, Texas
				Government Code, to allow the employees of a participating department to
				participate in the pension system. Pursuant to the authority granted to the
				state board under §
									861.006(a),
				Texas Government Code, and as contemplated by §
									302.7
				of this title (relating to Employees of Participating Departments), the state
				board adopts this rule to ensure the participation of employees of
				participating departments, whether full-time or part-time, satisfies the plan
				qualification requirements under §401(a) of the Code and to maintain the
				status of the pension system as a governmental plan under §414(d) of the
				Code.
(c) Notwithstanding §
									862.002, Texas
				Government Code, the employees of any department that does not constitute or is
				not part of a governmental entity or a government-controlled entity are not
				eligible to participate in the pension system, including, without limitation, a
				§501(c)(3) or other nonprofit corporation incorporated under state law
				that contracts with a governmental entity to provide fire protection and
				emergency response services for the general public or receives public funding
				for the performance of such services.
(d) For purposes of this section, a
				participating department will constitute or will be considered to be a part of
				a governmental entity if the participating department is a department of a
				municipality, county, special-purpose district or authority or any other
				political subdivision of the state of Texas whose employees are considered
				employees of a governmental entity.
(e) For purposes of this section, a
				participating department will constitute or will be considered to be a part of
				a government-controlled entity if a majority of the governing body of the
				department is composed of publicly elected or appointed officials of the state
				of Texas or individuals appointed by such elected or appointed officials,
				regardless of whether or not the department itself is a governmental
				entity.
(f) Solely for purposes of
				participation in the pension system and, except as otherwise provided below,
				prior to the first date of participation in the pension system, if a
				governmental entity or government-controlled entity has both employees and
				volunteers who are performing emergency services or support services, the
				governing body of such entity may elect to treat its paid employees as members
				of a paid department that is separate from its volunteer department, and such
				paid department may make a separate election as to whether or not to
				participate in the pension system under §
									862.001(a-1),
				Texas Government Code. The governing body of such governmental entity or
				government-controlled entity must notify the executive director in writing of
				its election to treat its paid employees as members of a separate department
				prior to any election to participate in the pension system.
(g) Notwithstanding subsection (f) of this
				section, the governing body of a participating department that constitutes or
				is part of a governmental entity or a government-controlled entity that has
				made an election to participate in the pension system under §
									862.001(a-1),
				Texas Government Code, before September 1, 2020, may elect to treat its paid
				employees as members of a separate paid department that will not participate in
				the pension system by notifying the executive director in writing of its
				election no later than December 31, 2020. Such paid department will not be
				considered to have elected to participate in the pension system and its paid
				employees will not be enrolled as members of the pension system unless a
				separate election is made by the governing body of the department on behalf of
				such paid department to participate in the pension system.
(h) Any governmental entity or
				government-controlled entity that elects to separate its paid employees and
				volunteers into different departments for purposes of participation in the
				pension system under this section must maintain separate records for each
				department, including, without limitation, records related to the enrollment of
				its members and qualified service earned by each member in such
				department.
(i) For purposes of
				determining a member's eligibility to participate in the pension system, if a
				member performs emergency services or support services as both an employee and
				a volunteer for the same participating department, such member will not be
				eligible to earn qualified service for his or her service in both positions
				unless each position has different roles and responsibilities that are clearly
				distinct from the roles and responsibilities of the other position.