            TIElIE      ATTO
                              OF      TE%.A




The Honorable     Hal Hood                              Opinion   No.   H-   179
Firemen’s    Pension  Commissioner
503-F Sam Houston St. Office Bldg                       Re:    Where city refuses    to
Austin,   Texas 78701                                          match firemen’s   increased
                                                               contribution to retirement
Dear   Commissioner      Hood:                                 program

         The facts you have submitted       to us indicate    that the firemen    of Beaumont
have voted to raise their contributions         to the Firemen’s      Relief and Retirement
Fund from 6% per month of their salary            to 9%. The city, on the other hand,
has refused to match their contribution          on the ground that there is an apparent
conflict   between     $ $ IOA and IOA-2 of Article     6243e, Vernon’s      Texas Civil
Statutes,    the Act creating     the Firemen’s    Relief   Pension    Fund.    The Article   was
amended by Acts 1971, 62nd Leg.,           p. 851, ch. 101, which reenacted         5 5 IOA and
lOA-     to enlarge    their scope.    As so amended      the portions   of the sections    which
are in conflict     are:

                      “Section   LOA. (a) In all cities having fully paid
              firemen    where Firemen’s     Relief   and Retirement     Funds
              now exist or shall be created       under the provisions     of
              this Act and having a population       of less than two hundred
              ten thousand (210, 000), inhabitants       according   to the pre-
              ceding Federal      Census,  the city or the governing      body of
              the city shall deduct an amount equal to no less than three
              per cent (3%) nor more than six per cent (6%) from the
              monthly salary or compensation         of each participating    mem-
              ber fireman.     ”

                     “Section IOA--2.    (a) In all cities having fully paid
              firemen’   where Firemen’s     Relief   and Retirement    Funds
              now exist or shall be created     under the provisions     of this
              Act and having a population     of less than two hundred ten
              thousand (210,000),   according     to the last preceding   Federal




                                        p. 817
The Honorable     Hal Hood,     page   2        (H-179)




              Census,     the city or the governing        body of the city shall
              deduct an amount equal to no less than three per cent
              (3%) nor more than nine per cent (9%) from the monthly
              salary or compensation          of each participating     member
              fireman;     provided,    however,     that the totalof   the percen-
              tage contributed       by such city to the Fund, plus the per-
              centage,     if any, contributed      by such city under the Federal
              Social Security      Act,   shall not exceed:
                      (1) nine per cent (9%) of the monthly salary,           or
                      (2) the total percentage       contributed   to the retirement
              of other full time employees          of such city under the Texas
              Municipal      Retirement    System,     or any other retirement
              system,     whichever     is greater.    ” (Emphasis     added)

         The population of Beaumont according    to the 1970 Federal  Census           was
slightly   less than 116,000.  Therefore,  it is subject to these provisions.

        The cardinal     rule of interpreting     statutes is to “Look diligently    for the
intention   of the Legislature.      ” Article   10, Vernon’s    Texas Civil Statutes.
Where,     as in this case,      two parts of the same statute appear to be in irrecon-
cilable   conflict,   the part or provision     later in position   prevai:ls as the latest
expression      of the legislative    will, and has the effect of repealing      the other
part insofar     as there is irreconcilable      conflict.   53 Tex. Jur.    2d, Statutes,
 $101.   In the case of Stevens V. State,        159 S. W. 505, 507 (Tex. Crim.        1913)
the court cited Parshall         v. State, 138 S. W. 759, 767 (Tex.       Crim.    1911) and
quoted from it as follows:

                       “The different sections  or provisions    of the same
              statute or Code should be so construed        as to harmonize
              and give effect to each, but, if there is an irreconcilable
              conflict,   Me later in position prevails.   ”

         Since both $lOA (a) and $ IOA-2(a)         of Article   6243e were re-adopted     in the
1971 Act, the only basis to give one of them precedence               over the other is their
relative    position   in the Act.     We therefore    hold that, as applicable   to cities of
less than 210,000, Article          6243e, V. T. C.S.,      should be read as authorizing     the
deduction     of contributions     from the monthly salary of each participating         member
fireman     of not less than 3% nor more than 9%. This does -not necessarily                mean




                                           p.    818
The Honorable     Hal Hood,    page    3        (H-179)




that a city, whose firemen       have voted to make the maximum          contribution      ,
must likewise    make a contribution      in that amount.     Section LOA-2(c),      the
mandatory    provisions    of the statute, require   the city to contribute     only an
amount equal to the sum paid by salary deductions            of members     but, under
no circumstances      shall the total of the percentage      contributed   by the city
plus the contribution    to the Federal     Social Security   Act exceed    9% of the
member’s     monthly salary or the total percentage         contributed   to the retire-
ment of other full-time      employees    of the city under the Texas Municipal
Retirement    System,    whichever    is greater.    Thus, there are definite       limit-
ations on the contribution     to be made by the city and the upper limit may be
either more or less than 9% depending upon the facts which we do not have
before us.

                                      SUMMARY

                       Because   $lOA-2 of Article     6243e, Vernon’s      Texas
              Civil Statutes,     is later in position    to 5 lOA    of the same
              Article,    the former     section controls    and the maximum
              contribution     which may be made to the Firemen’s           Relief
              and Retirement       Fund by a fireman       member   is 9% rather
              than 6%. Cities are required          to make a correspondingly
              higher contribution       subject to the limitations    imposed     by
              the statute.




       n                                   u       Attorney   General   of Texas




DAVID M. KENDALL,           Chairman
Opinion Committee




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