         TIRE     ATTORNEY          GENERAL

                      QF~EXAS



                     February 5, 1963

Honorable Richard Slack, Chairman
Committee on Municipal Corporations
Capitol Station
Austin, Texas

                       Opinion No. c-16
                       Re:   Constitutionality of House
                             Bill 249 of the 58th Legls-
Dear Mr. Slack:              lature.
       You have requested our opinion on the constltution-
ality of House Bill 249 of the 58th Legislature applicable
to cities having a opulation of 350,000 or more inhabit-
ants but less than E 00,000 inhabitants according to the last
preceding Federal census, and providing for an increase in
the disability benefits contained in the Firemen's Relief
and Retirement Fund.
       The caption of House Bill 249 provides:
           "AN ACT requiring cities having a
      population of three hundred fifty thousand'
      (350,000) or more, but less than four hun-
      dred thousand (400,000), according to the
      last preceding federal census, to increase
      the disability benefits contained In their
      Firemen's Relief and Retirement Fund, to make
      deductions from the salaries of firemen, to
      provide monthly contributions of specified
      amounts into the Firemen's Relief and Retire-
      ment Fund, and to provide a specified invest-
      ment policy for surplus funds; providing for
      severability; and declaring an emergency."
       Section 56 of Article III of the Constitution of
Texas provides in part as follows:
            "The Legislature shall not, except as
       otherwise provided in this Constitution, pass
       any local or special law, . . .
            II'. . .

                             -63-
                                                                 I.   ,,




Hon. Richard Slack, page 2 (c-16) :


            "Regulating the affairs of counties,
       cities, towns, wards or school districts;
       . . .
            "And In all cases where a general law
       can be made applicable, no local or special
       law shall be enacted; . . .'
       Section 51e of Article III of the Constitution of Texas
authorizes each incorporated city and town in this State to
provide a system of retirementand disability pensions for
its appointive officers and employees.
       Section 5lf of Article III of the Constitution of Texas
provides:
            "The Legislature of this State shall
       have the authority to provide for a system of
       retirement and disability pensions for appoint-
       ive officers and employees of cities and towns
       to operate Statewide or by districts under
       such a plan and program as the Legislature shall
       direct and shall provide that participation
       therein by cities and towns shall be voluntary;
       provided that the Legislature shall never make an
       appropriation to pay any of the cost of any sys-
       tem authorized by this Section."
       In City of Fort Worth v. Howerton, 149 Tex. 614, 236
S.W.2d 615 (1951) th S         C   t considered the constitu-
tionality of Artidle ~24~~&n~'s      Civil Statutes, an Act
providing for creating of a police officers' pension system in
all cities in the State having a population of not less than
175,000 Inhabitants and not more than 240,000 inhabitants, and
held:
               "This case presents two controlling ques-
       tions: (1) Whether the Legislature by the enact-
       ment of Article 62431 could change the system
       adopted by the City of Fort Worth under Section
       51-eof the Constitution, and, without the consent
       of the city, put It under a system created under
       the nrovisions of Article 62431, and compel
       certain    funds to be transferred from The Employ-
       ees' Retirement Fund to the system created under
       Article 62431; and (2) whether Article 62431 is
       a local or a special law, and subject to the


                              -64-
Hon. Richard Slack, page 3 (C- 16 )


      provisions of the Constitution relating
      to the enactment of such a law.
            "If the rights fixed under the system
       created by the City of Fort Worth under
       Section 51-e of the Constitution cannot be
       affected by legislative enactment, then the
       second and other questions presented become
       Immaterial to a decision here.   . . .
            "Section 51-e Is expressed in plain,
       definite, and unambiguous language. It au-
       thorized the City of Fort Worth to establish
       ;a;;eiion system independent of the Legis-
             . The City of Fort Worth accepted the
       offer of its terms, and created The Employees'
       Retirement Fund thereunder. There is no con-
       tention that the system created by the City of
       Fort Worth is Illegal in any respect. The
       system is functioning according to law, and
       the trustees of The Employees' Retirement Fund
       have in their custody a large accumulated reserve
       fund.
            II . . .

            "We hold that certain rights, duties and
       obligations have been created by the City of
       Fort Worth under the pension system adopted
       under the provisions of Section 51-e of Artl-
       cle 3 of the Constitution and involved here,
       and the Legislature is not authorized to change
       the plan, as Is undertaken by Article 62431
       without the consent of the City of Fort Worih,
         d th t th t    t fth    1     hi h  d tak
       t"odo & isainEi&aiive Es ?a?nsg tE"e%ty "0:
       Fort Worth." (Emphasis added7 .
       Certain rights under the provisions of Article 6243f,
applicable prior to the 1959 amendment to cities having a
population of more than 200,000 inhabitants and less than
293,000 inhabitants, presently applicable to cities contain-
ing more than 350,000 inhabitants and less than 430,000 lnhabit-
ants according to the last preceding Federal census, have been
adjudicated by the appellate courts of this State. Davis v.
Peters, 224 S.W.2d 490 (Tex.Civ.App. 1949); Jud v. C3.tyof San
-0,      263 S.W.2d 789 (Tex.Clv.App. 1953, error ref.}.
                              -65-
Hon. Richard Slack, page 4 (c- 16 )


        In Attorney General's Opinion MS-212 (19551, In pass-
ing u on the constitutionality of Senate Bill 343, Acts of
the 5E th~leglslature, Regular Session, 1955 chapter 242,
page 673, amending Section 17 of Article 6243f, Vernon's
Civil Statutes, supra, this office held:
            "Since the Legislature is authoriz-.
       ed to provide a pension system to operate
       statewide or by districts, It is our opin-
       ion that Section 56 of Article III of the
       Constitution of Texas prohibiting the enact-
       ment of local or special laws regulating then
       affairs of cities, does not apply to the pro-
       visions of Article 6243f and Senate Bill 343
       of the 54th Legislature Is constitutional.
            "This opinion is based on the asswnp-
       tion that the City of San Antonio has not
       adopted the provisions of Section 51-e of
       Article III of the Constitution of Texas.
       See City of Fort Worth v. Howerton, supra,
       wherein the court stated th t if the .system
       is established under Sectio: 51-e of Article
       III of the Constitution of Texas, such sys-
       tem would be controlled thereby and would not
       be controlled by the acts of the Legislature."
       Therefore, you are advised that the provisions of
Section 56 of Article III of the Constitution of Texas pro-
hibiting local and special laws regulating the affairs of
cities have no ap llcation to the constitutionality of House
Bill 249 of the 58th Legislature.
       As above noted, however, the Legislature Is not author-
ized to change the plan adopted by the City of Fort Worth
pursuant to the provisions of Section 51e of Article III of
the Constitution of Texas. City of Fort Worth v. Howerton,
supra.
       House Bill 249 of the 58th Legislature Is presently ap-
plicable only to the City of Fort Worth, since the City of
Fort Worth, having a population according to the 1960 Federal
census of 356,268 inhabitants, Is the only city presently
falling within the population bracket contained In House Bill
249.
       The -Rmployeest~Retirementplan of the.Clty ofFort Worth
adopted pursuant to the ~provlslons of Section ~51e of Arti~cle


                               -6b-
Hon. Richard Slack, page 5 (C- 16 )


III of the Constitution of Texas, was put into effect with
the adoption of Ordinance No. 2266 by the city of Fort Worth,
and later amended by Ordinance No. 2666 and Ordinance No.
2999.
       Subdivision 2 of Section 2 of Ordinance No. 2999,
amending Ordinances Nos. 2266 and 2666, adopted by the City
of Fort Worth, provides:
             "Employees eligible for participation
        in the Retirement Fund shall include all
        regular employees of the City of Fort Worth
        except the following employees who shall
        not be eligible for participation in the
        Retirement Fund: . . .
             " f. Employees who retain membership
        in any other local, municipal or State Re-
        tirement Fund.   . . ."
        Section 3 of this Ordinance provides:
             I, . . . Membership in the Fund shall be
        a condition of employment for all future
        eligible employees except Fire and Fire Alarm
        workers."
       According to the information furnished this office,
no member of the Fire Department of the City of Fort Worth is
a member of the Municipal Retirement plan adopted by the City
of Fort Worth pursuant to the provisions of Section 5le of
Article III of the Constitution of Texas.
       Under the terms of Ordinance No. 2266, creating the
Employees' Retirement Fund of,the City of Fort Worth, firemen
who participate in the Fort Worth Firemen's Relief and Retlre-
mentFund are Ineligible to participate in the Employees'
Retirement Fund of the City of Fort Worth.
       Therefore, House Bill 249 of the 58th Legislature, in-
creasing the disability benefits contained in the Fort Worth
Firemen's Relief and Retirement Fund and making other smend-
ments to such Fund, does not attempt to change the Fort Worth
Municipal Employees' Retirement plan adopted pursuant to the
provisions of Section 51e of Article III of the Constitution
of Texas. Based on the assumption that no fireman in the City
of Fort Worth is a member of the pension plan adopted pursuant



                             -6-r-
                                                             -    “*




Hon. Richard Slack, page 6 (C-16)


to the provisions of Section 5le of Article III  of the Consti-
tution of Texas, we are of the opinion that House Bill 249
of the 58th Legislature does not attempt to change Its pension
plan without the consent of the City of Fort Worth. Based on
this assumption, you are advised that House Bill 249 of the
58th Legislature is valid.

                          SUMMARY
        Section 56 of Article III of the Consti-
        tution of Texas prohibiting the enactment
        of local or special laws on certain subjects
        Is not applicable to House Bill 249 of the
        58th Legislature, amending certain provisions
        of the Firemen's Relief and Retirement Act
        applicable to cities having a population of
        35O;OOO or more inhabitants and less than
        400,000 Inhabitants, in view of the pro-
        visions of Section 5lf of Article III of the
        Constitution of Texas which creates an excep-
        tional situation.

                            Yours very truly,
                            WAGGONER CARR
                            Attorney General




JR:ms                           Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Albert Jones
J. S. Bracewell
Cecil Rotsch
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton ,Stone
