                      The Attorney               General of Texas
                                       January     3,    1980

MARK WHITE
Attorney General


                   Honorable Hal II. Hood                       Opinion No. Ml+ 12 2
                   Firemen’s Pension Commissioner
                   503-F Sam Houston State Office Bldg.         Re: Whether a retired volunteer
                   Austin, Texas 78701                          fireman may continue to serve.

                   Dear Commissioner Hood:

                          You have requested our opinion regarding whether a volunteer fireman
                   who is receiving retirement    pay may continue to serve as a volunteer
                   fireman and, if so, whether he would have a claim for disability benefits
                   against the Volunteer Fire Fighters’ Relief and Retirement Fund in the event
                   of his disability.

                         In reading article 6243e.3, V.T.C.S., entitled “Volunteer Fire Fighters’
                   Relief and Retirement Fund,” no provision can be found which expressly
                   prohibits a retired volunteer fireman from continuing to serve as a member
                   of a volunteer fire department

                         Section 4(a) of this statute states: “A member fire fighter must elect
                   between retirement or disability benefits if eligible for both.”

                          If a retired volunteer fireman continues to serve his department while
                   receiving retirement pay and become disabled, according to the provisions of
                   section 4(a), he must choose between these two benefits. This presumably
                   would not cause sn actuarial problem since the governing body under whose
                   jurisdiction the fire department exists would be required to contribute the
                   minimum $12 per month into the fund for each month of qualified service by
                   the retired fireman, see article 6243e.3 S 2(c). This contribution should
                   satisfy the actuarial nee8 of the fund should a disability occur.

                        Section l(1) defines “Qualified service” as follows:

                              (1) ‘Qualified service’ means f&-fighting    service
                              rendered without monetary remuneration      while a
                              member in good standing of a fire-fighting unit that
                              has no fewer than 10 active members, and a minimum
                              of two drills each month, each drill two hours long,
                              and each active member present at 60 percent of the
                              drills and 25 percent of the ties, or fire-fighting




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Honorable Hal H. Hood    -   Page Two        (Mw-122)



           service rendered without monetary remuneration while a member
           of a fire-fighting unit which includes paid fire fighters. Absence
           caused by military duty does not affect qualified service.

       There is nothing in the definition of “qualified service” under section l(1) which
indicates that service by a fireman drawing retirement         pay cannot be considered
“qualified service.” A volunteer fireman’s receipt of retirement pay does not constitute
“monetary remuneration” since he does not receive such pay as a result of his current
services to the department.

      In the event a volunteer fireman dies, if his death was not a result of his
performance of duties as a fire fighter, the lump-sum benefit would beno different if he
were active or retired, therefore, a retired fireman’s status as an active member in this
type of situation would have no effect on the fund

       If, however, his death were caused by his duties as an active member of his
department, his survivors would receive a lump-sum payment of no less than $5,000, and a
retired fireman’s status as an active member in this instance would normally make a
difference as to his survivors’ benefits. If the $5,000 lump-sum benefit is greater than
what the retired fieman’s survivors would receive if he had not been in active service, the
additional drain on the fund which this would create would here again be compensated for
by the fact that the governing body had made monthly contributions into the fund and such
contributions   have been determined by the actuaries to be sufficient to cover this
contingency.

      In addition to lump-sum death benefits,      section   5(c) and Cd) provide for monthly
survivor benefits as follows:

              (c) In addition to the lump-sum death benefit, the spouse and
           dependents shall receive in equal shares a survivor’s benefit equal
           to two-thirds of the disability benefit the decedent would have
           received at date of death. As long as both spouse and one or more
           dependents survive, an additional one-third of the disability benefit
           the decedent would have received at date of death shall be paid to
           the dependents in equal shares.

             (d) If a member fire fighter dies after retirement, the surviving
           spouse shall receive two-thirds of the monthly pension the decedent
           was receiving at the time of death.

       As can be seen, these benefits are significantly different depending on whether the
fieman is retired or active. Since, in the situation before us, the fireman would be both
retired and active, according to the underlying principle of section 4(a) the surviv-
must ch=       between the benefit based on the retirement pension or the benefit based on
the disability benefit.




                                        p-   382
Honorable Hal H. Hood     -   Page Three    (MW-122)



                                       SUMMARY

           A retired volunteer       fire-fighter may continue to serve his
           department as an active member and does have a legal claim
           against the volunteer Fire Fighters’ Relief and Retirement Fund in
           the event of his disability or death. If the fire-fighter is eligible
           for both disability and retirement benefits, he must elect between
           them.




                                            MARK     WHITE
                                            Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Eva King Loutzenhiser
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Bob Gammage
Susan Garrison
Rick Gilpin
Les King
Eva King Loutzenhiser




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