   .    .




               THE     AYTCBRKEY     GENERAL
                          aBP    XAS

AT-rOHNl!zx
        DEN&RAI.
                         May 7, 1968



   Mrs. Marie Hudson Winters            Opinion No. M-229
   Firemen's Pension Commissioner
   Sam Houston Building                 Re:   Authority of firemen to
   Austin, Texas '78791                       discontinue participation
                                              in the State Firemen's Re-
                                              lief and Retirement System
                                              in whole or in part, and
   Dear Mrs. Whters:                          related questions.

             You have requested an opinion from this office regarding
   the participation of the Sulphur Springs Fire Department in the
   State Firemen's Relief and Retirement Fund. You asked the f?!~T.ow-
   ing questions:

             "1* In a Fire Department composed of
        some volunteer firemen and some paid firemen
        can the paid men vote to discontinue paying
        into the Fund.

             “2.  Should the entire Fire Department -
        both volunteer and paid firemen - vote on the
        question.

             "3 . Can the paid men and volunteers vote
        that the paid men discontinue paying into the
        Fund but the volunteers continue to participate.

             "4. Can a few paid men continue to pay into
        the Fund and a few discontinue to pay? ur
        should it be an ‘all or none' proposition.

             "5. If a few paid men do stay in the
        Fund then is each new fireman hired not re-
        quired to participate."



                              - 1119-
M~S. Marie Hudson Winters, page 2 (M-229)



Since each of these questions relate to participation or non-
participation in the Fund, they will not be treated separately
here.

          In regard to these questions, you are advised that
under Article 6243e, Section lOA-2(f) of Vernon's Civil Statutes,
all persons who have become firemen in Sulphur Springs since
August 28, 1967, must participate in the Fund. The statute says:

          "Each person who shall hereafter become
     a fireman in anv citv which has a Firemen's
     Relief and Reitrement Fund to which he is eli-
     gible for membership, shall become a member of
     such Fund as a condition of his appointment,
     and shall by acceptance of such position acree
     to make and shall make contributions required
     under this Act of members of such Fund. and
     shall oarticipate in the benefits of member-
     ship in such Fund as provided in this Act,
     provided, however, that no person shall be
     eligible to membership in any such Fund who
     is more than thirty-five (35) years of age
     at the time he first enters service as a
     fireman: and provided, further, that any such
     person who enters service as a fireman may be
     denied or excused from membership in the Fund
     if the Board of Trustees of the Fund determines
     that such person is not of sound health. The
     applicant shall pay the cost of any physical
     examination required in such instance by the
     Board of Trustees." (Emphasis added.)

          As to members of the Sulphur Springs Fire Department
who were appointed before the above-quoted amendment became ef-
fective, Subdivision (g) of Section lOA- requires that these
persons continue participation in the Fund. The statute says:

          "Each person who is an active member of
     a Firemen's Relief and Retirement Fund pre-
     viously organized and existing under the laws
     of this State at the effective date of this


                           -1120-
&s.   mrie   Hudson Winters, page 3 (M-229)



      amendment shall continue as a member of such
      Fund and he shall retain and be allowed credit
      for all service to which he was entitled in
      the Fund of which he was a member immediately
      prior to the effective date of this amendment."

Firemen who were not members of the Fund before the 1967 amendment
became effective have a choice as to participation under Section
10 of Article 6243e. That statute says:

           "Sec. 10. Each city or town in which a
      firemen's Relief and Retirement Fund has been
      Created prior to the time at which this amend-
      ing section of this Act takes effect and which
      has a part-paid or volunteer fire department,
      or the governing body of such city or town, shall
      henceforth be authorized to deduct from the salary
      or compensation of each fireman who is particioatinq
      in such Fund when this amending section takes effect,
      or to collect from each such fireman, whatever amount
      shall have been authorized, or agreed to, by the filing
      by such fireman, with the Secretary-Treasurers of the
      Board of Firemen's Relief and Retirement Fund Trustees
      of such fireman's city or town, of a statement in
      writing under oath that he desires to participate in
      the benefits from such Fund, giving the name and
      relationship of his then actual dependents and au-
      thorizing said city or town or the governing body
      thereof to deduct not less than one (1) per centum
      nor more than three (3) per centum, the exact amount
      thereof to be determined by the vote of the fire
      department of which such person is a member, from
      his salary or compensation if a part-paid fireman
      whose salary or compensation is more than Fifty
      Dollars ($50) per month, but if a part-paid fireman
      whose salary is less than Fifty Dollars ($50) per
      month, or if a volunteer fireman, the statement
      shall include a promise and an obligation to pay
      to said Board of Trustees not less than Three
      Dollars ($3) nor more than Five Dollars ($5) per
      annum to be paid semi-annually, the exact amount
      thereof to be likewise determined by vote of the

                             -1121-
Mrs. Marie Hudson Winters, page 4   (M-229)



     fire department of which such person is a
     member. Such money so deducted from salaries
     or compensation or agreed to be paid to be-
     come and form a part of the Fund herein des-
     ignated and established as Firemen's Relief
     and Retirement Fund of that city or town.
     Failure or refusal to make and file the state-
     ment herein provided, or failure or refusal
     to allow deduction from salary or to pay the
     amount herein specified as herein provided on
     the part of any member shall forfeit his right
     to participate in any of the benefits from said
     Firemen's Relief and Retirement Fund. If any
     such member shall elect not to participate in
     such Fund, he shall not be liable for anv salary
     deduction nor to pay as herein provided."
     (Emphasis added.)

Section 1OA of the above statute applies to "all cities having
fully paid firemen," as does Section lOA-2, whereas Section 10B
applies to cities with firemen in a "'full paid' fire department."
We are not at liberty to hold these terms synonymous in order to
hold that Section lOA- does not apply to the City of Sulphur
Springs. We must presume that the Legislature carefully chose
its words, and we must give effect to the distinctions in its
language.

          The statutes are not clear as to the status of volunteers.
However, it is the opinion of this office that volunteers in the
Sulphur Springs Fire Department should be allowed to continue par-
ticipation in the manner prescribed above in Section 10 of Article
6243e of Vernon's Civil Statutes. We conclude that by its amend-
ments to the statute, the Legislature evidently intended to re-
quire all fully paid firemen to be members of the State Firemen's
Relief and Retirement Fund except those who were not members of
the Fund at the time the 1967 amendment became effective. Volunteers,
part-paid firemen, and those fully paid but not members of the Fund
at the time of the 1967 amendment were given an individual election
as to participation in the Fund.

                      SUMMARY

          Fully paid firemen of Sulphur Springs who
     were appointed after August 28, 1967. must be
                           -1122-
MIX. Marie Hudson Winters,   page 5 (M-229)



     a member of the State Firemen's Relief and
     Retirement Fund. Fully paid firemen who were
     members of the Fund before the 1967 amendment
     must continue their participation in the Fund.
     Persons who were fully paid firemen, but were
     not members of the Fund at the time the 1967
     amendment became effective may elect to par-
     ticipate on an individual basis. Volunteers
     and part-paid firemen also have an individual
     election as to participation.

                               Vy     truly yours,




Prepared by Philip G. Warner
Assistant Attorney General

APPROVKD:
OPINION COMMITTEE

Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
Houghton Brownlee
Ralph Rash
Roger Tyler
James Broadhurst

A. J. CARUBBI, JR.
Btecutive Assistant




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