                        ORNEY       GENERAL
                           TEXAS



                      September 22, 1958

Mrs. Marie Hudson
Firemen's Pension Commissioner
702 Tribune Building
Austin, Texas
                         Opinion No. WW-501
                          Re :   The maximum benefit provided
                                 for the beneficiaries of a
                                 fireman who was covered at the
                                 time of his death by the pro-
                                 visions of the Firemen's Pen-
                                 sion Law, said death not being
                                 caused by the performance of
Dear Mrs. Hudson:                his duties as a fireman.
          We have your request for an opinion. You desire to
know what is the measure of the maximum benefit provided for
the beneficiaries of a f,iremanwho was covered at the time of
his death by the provisions of The Firemen's Pension Law, said
death not being caused by the performance of his duties as a
fireman.
          Section 7A of Article 6243e of Vernon's Civil Stat-
utes, provides a pension allowance for death or disability
from cause not resulting from performance of duties and reads
2s   follows:

            Whenever a person serving as an active
       fireman duly enrolled in any regularly active
       fire department in any city or town in the
       State having a population or less than five
       hundred thousand (500,000) according to the
       last preceding Federal Census, which city or
       town is now within or may hereafter come within
       the provisions of this Act, shall die or become
       disabled from any cause other than a disability
       acquired in the performance of his duty as a
       fireman, a pension allowance shall be paid to
       the widow or fireman. The monthly pension
       allowance shall be computed as follows: rive
       per cent (5%) of the total amount the individ-
       ual fireman or widow would have been entitled
       to receive under Section 7 or Section 12 had
MIS. Marie Hudson, page 2   (WW-501)


    such death or disability occurred as the result
    of such fireman's being incapacitated or killed
    while in and/or in consequence of the perform-
    ance of his duty as a fireman shall be allowed
    for each year of participation in the relief and
    retirement fund, provided that such allowance
    shall not be computed on the basis of more than
    twenty (20) years. In no event, however, shall
    such fireman or widow receive an amount less than
    Fifty Dollars ($50) per month. If such fireman
    be a volunteer fireman and thereby receiving no
    salary, the amount so ordered paid, if all of
    the other conditions have been met, shall be not
    less than Twelve Dollars and Fifty Cents ($12.50)
    per month.
          "If any such fireman who is a member of a
     'full paid' fire department shall die from any
    cause not growing out of and not in consequence
    of his duty as a fireman and shall leave surviv-
    ing him a child or children under the age of
    eighteen (18) years or a dependent parent, said
    Board of Trustees shall order paid a monthly pen-
    sion allowance as follows: (a) to the guardian
    of each child the sum of Twenty Dollars ($20) per
    month until such child reaches the age of eight-
    een (18) years; (b) in the event the widow dies
    after being entitled to her allowance as herein
    provided or in the event there be no widow to re-
    ceive an allowance, then the amount to be paid
    to the guardian of any dependent minor child or
    children under the age of eighteen (18) years
    shall be Forty Dollars ($40) per month for each
    such dependent minor child; and (c) to the depend-
    ent parent only in case no widow or child is en-
    titled to allowance, the amount the widow would
    have received to be paid to but one (1) parent
    and such parent to be determined by the Board of
    Trustees; provided however.that the total allow-
    ance to be aaid all beneficiaries or deoendents
    as herein provided shall not exceed the month&
    allowance to be caid the tensioner had he contin-
    ued to live or be retired on allowance at the
    date of his death; and further provided that if
    such amount be insufficient to pay the !ull sched-
    ule of benefits as herein provided, such benefits
    shall be prorated. Allowance or benefits payable
    to any minor child shall :ease when such child
    becomes eighteen (18) years of age or marries.
Mrs. Marie Hudson, page 3   @J-w-501)


          "Provided, however, that the provisions
    of.this Section shall not apply if the death
    or disability of the fireman was caused while
    such fireman was gainfully employed by someone
    other than the respective fire department for
    which he was employed or contributed his serv-
    ices.

          "The provisions of this Section as amended
    shall be automatically applicable to any relief
    and retirement fund in which such Section was
    included by majority vote of the members prior
    to the effective date of this amending Act, pro-
    vided however that the paragraph providing bene-
    fits for surviving beneficiaries of a member of
    a,,'full paid' fire department shall only be ap-
    plicable to beneficiaries of a member of a 'full
    paid' fire department. Provided further however,
    that the provisions of this Section shall not be
    applicable to any particular relief and retire-
    ment fund in which such Section was not included
    prior to the effective date of this amending Act
    until after an election has been held and the
    majority of the participating members of that
    respective fund have voted to include the provi-
    sions contained in this Section within the Relief
    and Retirement Fund. At such election the effec-
    tive date of these provisions shall also be set.
    Added Acts 1953, 53rd Leg., p* 352, ch. 82, § 3,
    ;s,6a;endedActs 1957, 55th Leg., pe 617, ch. 275,
        0   (Emphasis added).
          Section 12 of Article 6243e, Vernon's~Civil Statutes,
governs the amount of allowances to beneficiaries of deceased
members, and is as follows:
          "If any member of any department in any
    ,city or town having a population 0r less than
    rive hundred thousand (500,000) according to the
    last .precedingFederal Census, which city or town
    is now within or may hereafter come within the
    provisions of this Act, who has been retired on
    allowance because of length of service or disabil-
    ity, shall thereafter die from any cause whatso-
           or if while in service any member shall die
    %?i'any cause growing,out 01 and/or in consequence
    of the performance of his duty; or shall die from
    any cause whatsoever after he has become entitled
    to'an allowance or pension certificate and shall
Mrs. Marie Hudson, page 4   w+501)


    leave surviving a widow, a child or children un-
    der the age of eighteen (18) years or a depend-
    ent parent, said Board of Trustees shall order
    paid a monthly allowance as follows: (a) to the
    widow, so long as she remain a widow and provided
    she shall have married such member prior to his
    retirement, a sum equal to one-third (l/3) of the
    average monthly salary of the deceased at the
    time of his retirement on allowance or death; (b)
    to the guardian of each child until such child
    reaches the age of eighteen (18) years, the sum
    of Six Dollars ($6) per month for part paid or
    volunteer Departments, and the sum of Twenty Dol-
    lars ($20) per month for fully paid Departments;
    (c) in the event the widow dies after being en-
    titled to her allowance as herein provided, or in
    the event there be no widow to receive an allow-
    ance, then the amount to be paid to the guardian
    of any dependent minor child or children under the
    age of eighteen (18) years shall be Twelve Dollars
    ($12) per month for each such dependent minor child
    for part-paid or volunteer Departments, and the
    sum of Forty Dollars ($40) per month for each such
    dependent minor child for fully paid Departments;
    (d) to the dependent parent only in case no widow
    or child is entitled to allowance, the amount the
    widow would have received to be paid to but one
    (1) parent and such parent to be determined by the
    Board of Trustees; provided however, that the total
    allowance to be paid all beneficiaries or deuend-
    ents as herein orovided shall not exceed the monthlv
    allowance to be paid the pensioner had he continued
    to live or be retired on allowance at the date of
    his death; and further provided, that if such amount
    be insufficient to pay the full schedule of bene-
    fits as herein provided, such benefits shall be pro-
    rated. Allowance or benefits payable to any minor
    child shall cease when such child becomes eighteen
    (18) years of age or marries. As amended Acts 1955,
    54th Leg. p. 461, ch. 127 g 2; Acts 1957, 55th
    wz., p. b17, ch. 275, 3 13.11 (Emphasis added)
          From the foregoing you are advised that when a fire-
man dies who was covered at the time of his death by the pro-
visions of the Firemen's Pension Law and said death was not
caused by the performance of his duties as a fireman the total
pension allowance which may be paid his beneficiariei cannot
exceed the monthly allowance to be paid the pensioner had he
Mrs. &rie   Hudson, page 5    (WW-501)


continued to live or be retired on allowance at the date of
his death. The actual date of death is the time to be used
in the calculation.


           When a fireman dies who at the time of his
      death was covered by the provisions of the
      Firemen's Pension Law, and the death was not
      caused by the performance of his duties as a fire-
      man, the total pension allowance payable to his
      beneficiaries cannot exceed the monthly allowance
      had he continued to live or be retired on allow-
      ance at the date of his death;~

                                Yours very truly,
                                WILL WILSON
                                Attorney General of Texas




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APPROVED:
OPINION COMMITTEE

Geo. P. Blackburn, Chairman
Raymond V. Loftin, Jr.
Jack Price
John Reeves
REVIEWED FOR THE ATTORNEY GENERAL
BY:    W. V. Geppert
