Mrs. Marie Hudson
Fireman's Pension Commissioner
702 Tribune Building
Austin, Texas
                                 Opinion No. ~~-726
                                 Re:   Whether a Fire Department
                                       joining the State Fire-
                                       men's Pension System must
                                       have 100% participation
                                       and If an age limit can
                                       be set for individual
                                       firemen to participate
Dear Mrs. Hudson:                      in the Pension Program.
        You have requested an opinion as to whether a Fire
Department joining the State Firemen's Pension and Retire-
ment Program is required to have all firemen participate
in the program.
        House Bill 358, Acts of the 45th Legislature, Regular
Session, 1937, Chapter 125, page 229, codified as Section 10,
Article 6243e of Vernon's Civil Statutes, allowed the individ-
ual fireman to make his choice as to his participation in the
Pension and Retirement Program.
            "Sec. 10. Withln sixty (60) days
       after this Act takes effect each fully
       paid fireman and each part paid fireman
       whose salary or compensation is Fifty
       Dollars ($50) or more per month and each
       part paid,fireman whose salary or compen-
       sation is less than Fifty Dollars ($50)
       per month and each active voluntee fire-
       man in the employ of any such city or
       town or enrolled in the fire department
       of any such city or town, who desires him-
       self or his beneficiaries, as hereinafter
       named, to participate in such Fund or the
       benefits therefrom as by this Act provided,
       shall file with the Secretary-Treasurer of
Mrs. Marie Hudson, page 2 (~~-726)


        the Board of Firemen's Relief and Retirement
        Fund Trustees of that city or town a state-
        ment in writing under oath that he desires
        to partic!.patein the benefits from such
        Fund, e . .'
        Section 12 of House Bill 68, Acts of the 55th Legisla-
ture, Chapter 275, Page 617, codified as Section lOB, Article
6243e of Vernon's Civil Statutes, amended Section 10 of Article
624je.  This amendment recognized the privilege of a fireman
not to participate in the program if he was a member of a de-
partment which had an existing retirement program at the time
this amendment took effect.


             "Any fireman who is a member of a depart-
        ment which had an existing Firemen's Relief
        and Retirement Fund prior to the effective
        date of this amending Act and who has elected
        and does elect not to participate in such Fund,
        shall not be liable for any salary deduction
        provided by this Act; but each person who shall
        hereafter j,oina fully paid fire department
        which then has a Relief and Retirement Fund
        shall file a statement in writing, in the man-
        ner hereinabove provided by this section, upon
        joining such department and shall thereafter
        participate In the contributions to and bene-
        fits from such Fund, as provided by this Act,
        unless such new fireman shall be rejected or
        excused therefrom by the Board of Trustees
        upon a determination by the Board that such
        person is not of sound health. . o ."
        It is our opinion that all firemen, who are members
of a fully paid fire department, must participate in the Fire-
men's Relief and Retirement Fund unless they, as individual
members of a fire department with a retirement program, had
elected not to participate in that retirement program before
Section 10-B, Article 6423e, Vernon's Civil Statutes, became
effective.
        Your second question as to whether an age limit can be
set precluding firemen over the age of forty (40) from parti-
cipating in the Firemen's Relief and Retirement Program is
 -   .




Mrs. Marie Hudson, page 3 (~-7%)


answered by Section 10-B of Article 6243e, as set out above.
Under Section 10-B, an individual who joins a fully paid fire
department, covered by this Act, with a Relief and Retirement
Program, is required to participate in the Program unless such
fireman is rejected by the Board of Trustees for the reason
set out in the statute.
        In our opinion this would not allow a fire department
to exercise its discretion in excluding individuals on the basis
of age.
        Section 10-B of Article 6243e of Vernon's Civil Statutes
restricts its coverage to fully paid fire departments which
necessarily restricts the coverage of this opinion to fully
paid fire departments, although as indicated a member of any
fire department with a retirement system in effect at the time
this statute went into effect who now works for a fully paid
fire department participating or that is now electing to parti-
cipate in the Firemen's Pension and Retirement Fund has the
option as set forth In this opinion.
                            SUMMARY
             All firemen, who are members of a fully
             paid fire department, and are covered by
             this Act, must participate in the Fire-
             men's Relief and Retirement %nd estab-
             lished under Section 10-B of Article c243e,
             Vernon's Civil Statutes, unless they, ds
             individuals, elected not to participatn
             in a re'1remer.tfund available to them
             through their fire department prior to
             May 22, 1957.
             A fire department cannotexclude an indi-
             vidual who joins that department from
             participating in the Firemen's Relief and
             Retirement Fund on the basis of age.
                                   Yours very truly,
                                   WILL WILSON
                                   Attorney General of Texas

JCS:me:mfh
                                   By
                                    525 :;i&
                                      Assist&t
                                     .   .




Mrs. Marie Hudson, page 4 (WW-726)


APPROVED:
OPINION COMMITTEE
John Reeves, Chairman
Willlam E. Allen
L. P. Lollar
Arthur J. Sandlin
REVIEWED FOR THE ATTORWY GENERAL
BY: W. V. Geppert
