The Honorable Hal H. Hood                          Opinion   No.   H-445
Fireman’s    Pension Commissioner
503-f Sam Houston State Office Bldg.               Re: Eligibility  of paid fireman
Austin,   Texas   78701                            who also works as volunteer fireman
                                                   during off-duty hours, to participate
                                                   in pension plans covering each position
                                                   and receive pensions for past services
                                                   - that as a paid fireman and as a
                                                   volunteer fireman.

Dear Commissioner      Hood:

           You have submitted two requests for an opinion that involve paid fire-
men, who during their off-duty hours,  serve as volunteer firemeh.   You ask
whether these firemen can, upon retirement,   receive pensions for their service in
each capacity.

            Articles    6243a,  6243b. 6243c,    6243d, 6243e and 6243f,  V. T. C. S.. , pro-
vide for the creation of pensions for paid firemen to be disbursed from a number of
trust funds which are established      for cities in different population brackets.      In
addition, article 6243e provides that volunteer firemen (as well as paid firemen)
can participate    in the pension fund created by such article and denominated the
Fireman’s    Relief and Retirement     Fund.

            In Attorney General Opinion H-7 (1973) we listed three impediments         to
the holding’of dual offices:  (1) the separation     of powe.r requirement  of article 2,
section 1 of the Texas Constitution;   (2) the limitations    imposed by sections 33 and
40 of particle 16 of the Texas Constitution;     and (3) the common law doctrine that one
person cannot hold two incompatible     offices.,   See also Attorney General Letters
Advisory   Nos. 55 (1973) and 65 (1973).

           It is, of course, apparent that there is no violation of the constitutional
separation of powers requirement     since both positions  involved are of the execu-
tive branch of government.

           Section 40 of article 16 of the Texas Constitution prohibits one person
from holding “more than one civil office of emolument”      (with exceptions not appli-
cable here).   Section 33 of article 16 bars the “Accounting    Offices of this State”
from making any payments to any person holding “more         than one civil office of
emolument,   in violation  of Section 40. “



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    The Honorable     Hal H. Hood - Page 2



               While ,a volunteer fiieman   is not paid for   his service.   the proper dis-
    charge of his duties as a volunteer will result in his     eligibility for a pension (see
    section 6 of article 6243e) and it cannot be said that    the position of volunteer G-
    man is without emoluments     since his labors in such    capacity will result in “pecuni-
    ary gain or advantage. ” Irwin v. State, 177 S. W. 2d     976 (Tei. Crim. App. 1944);
    Attorney General Letter Advisory     No. 85 (1974).

                  However,   we are of ihe opinion that a volunteer   fireman   does not occupy
    a “civil   office” within the meaning of section 40 of article    16.

                 One requirement    of a “civil office” is that a “public employment   be
    created by law . . . which is continuing and not intermittent        or occasional in nature. IV
    Attorney General Letter Advisory        No. 63 (1973).   We think that such requirement    is
    not satisfied in the case of a volunteer fireman who serves only in the case of a fire-
    created emergency       and who, ads you have informed us, is required, to attend only
    one-fourth    of the fires responded to by the department of which h$ is a member to
    be eligible for a pension.

                 Accordingly,  since a volunteer fireman does not occupy a civil office,   the
    restrictions   of sections 33 and 40 of article 16 will not foreclose narticination in
    and receipts from two pension funds.,      See also Attorney General Letters Advisory
    81 (1974) and 85 (1974).

                There remains the question of whether the common law doctrine of in-
    compatibility  will bar the holding of a position as paid fireman and a position of
    volunteer fireman at the same time.        Offices are incompatible   where their duties
    are or may be inconsistant     or in conflict.   State v. Martin,  51 S. W. 2d 815 (Tex.
    Civ. App. --San Antonio 1932, no writ).        Rather than being “in conflict, ” the two
    positions may very well complement         each other since the duties of each are con-
    sistent with the other.   -See Attorney General Letter Advisory      No. 30 (1973).

                  Nevertheless,   while there may be no legal incompatibility    which would
    foreclose,the    simultaneous    holding of positions as a paid and a volunteer fireman,
    any employer has the right to insist that an employee        “devote as much time to his
    employment      as was contemplated     at the time he was employed. ” Attorney General
    Letter Advisory      No. 62 (1973).    This, of course,  is a matter to be determined by
    the fire department      or departments    involved.

                We conclude t:hat: there are no general legal impediments    to one person
    holding positions as a p&id fireman and a volunteer fireman at the same time and he
    may participate   in the pension plans established for each position.   See also section
    67 of article 16, T.exas Constitution.   Of cburse the statutes involving each par-
    ticular pension plan should be consul.ted to determine   if there are statutory barriers
    to specific combinations.




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The Hono~rable Hal H. Hood - Page    3



                            SUMMARY

                    A paid fireman,  who also serves as
                  a volunteer fireman,  may participate
                  in pension plans covering both positions,
                  and receive a pension for service in each
                  position,

                                          Very    truly yours,




                                                 L. HILL
                                          Attorney General       of Texas


  PPROVED:
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Opinion   Committee


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