                                         The Attorney        General’ of Texas
                                                        December 29, 1983
    JIM MATTOX
    Attorney       General

                                       Honorable Lie F. Jacks&                 Opinion No. ~~-108
    Supreme Court Building             Chairman
    P. 0. Box 12549                    Committee on Employment Practices       Re: Whether the provisions
    Austin, TX. 79711. 2548
                                       Texas House of Representatives          of article 6243e. V.T.C.S..
    5121475-2501
    Telex 9101S74-1,387
                                       P. 0. Box 2910                          setting a maximum age of 35
    Telecopier 512,475.0266            Austin, Texas   78769                   for beginning eligibility in
                                                                               municipal   fire   department
                                                                               pension funds violate federal
    714 Jackson, Suite 700
    Dallas, TX. 75202.4506
                                                                               age discrimination statute
    2141742-8944



    4824 Alberta Ave.. Suite 180            You have requested our opinion on whether certain provisions of
    El Paso, TX. 79905.2793
                                       article 6243e, V.T.C.S., setting a ~tiximum age of 35 for beginning
    915/533-3484
                                       eligibility in municipal fir&department pension funds, violate the
                                       federal age discrimination statute, which protects oersons sees 40 to
P
    ‘001 Texas, Suite 700              70. See 29 U.S.C. $623, et seq. Specifically. you-point to-sections
    Houston, TX. 77002.3111            lOA(    1+2(f),. and 10B of article 6243e.
    713/223-5886

                                            Subsection 623(a)(l) of the Age Discrimihation'in Employment Act
    806 Broadway. Suite 312
                                       makes it unlawful for an employer
    Lubbock, TX. 79401.3479
    0061747-5230                                to fail or refuse to hire or to discharge any
                                                individual or otherwise discriminate against any
    4309 N. Tenth, Suite S
                                                individual with respect to his compensation,
    McAllen, TX. 79501.1685                     terms, conditions, or privileges of employment,
    5121682-4547                                because of such individual's age.

                                       Article 6243e, V.T.C.S., which establishes the "Firemen's Relief and
    200 Main Plaza, Suite 400
    San Antonio. TX. 78205.2797
                                       Retirement Fund," violates the federal provision, it is suggested,
    512/225-4191                       because it establishes a maximum age of 35 years for eligibility to
                                       fund membership and makes membership In the fund a condition of
                                       employment, thus establishing a maximum entry age for hiring purposes.
    An Equal Opportunity/
    Affirmative    Action   Employer
                                            We do not agree. Section 10B of article 6243e specifies that no
                                       person shall be eligible to begin participation in a fund on account
                                       of prior service who was more than 35 years of age "at the time he
                                       began his service as a fireman for the first time." Sections lOA
                                       and lOA-2(f), which concern cities of different sizes, both state the
                                       following:

                                                Each person who shall hereafter become a fireman
                                                in any city which has a Firemen's Relief and
                                                Retirement -Fund to which he is eligible for
                                                membership, shall become a member of such Fund as


                                                                  p. 454
Honorable Lee F. Jackson - Page 2   (JM-108)




          a condition of his appointment . . . 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 . . . .      (Emphasis
          added).

     The language emphasized above makes it obvious that only those
persons eligible to participate in the fund must do so as a condition
of employment, and that the hiring of persons not eligible for
membership therein because of their age ("at the time he first enters
service as a fireman") IS anticipated.

     Aside from other reasons why the congressional enactment might
not apply, subsection 623(f)(2) of the federal law expressly states
that it shall not be unlawful for an employer

          to observe the terms of...         any bona fide
          employee benefit plan such as a retirement,
          pension, or insurance plan, which is not a
          subterfuge to evade the purposes of this chapter,
          except that no such employee benefit plan shall
          excuse the failure to hire any individual . . . .

     In Alford v. City of Lubbock, 664 F.2d 1263 (5th Cir. 1982).
cert. denied, 456 U.S. 975 (1982), the court held that a provision
found in article 6243h. V.T.C.S. (repealed), establishing the Texas
Municipal Retirement System -- a provision comparable in all respects
to the article 6243e passages -- was not in any way violative of the
federal age discrimination law.

     We advise that sections lOA(      lOA-2(f), and 10B of article
6243e, V.T.C.S., are not in violation of the federal am
discrimination act, 29 U.S.C. 623, by reason of setting a maximum age
of 35 years for beginning eligibility in a municipal fire department
pension fund. Other questions need not be addressed.

                             SUMMARY

             Sections lOA(     lOA-2(f), and 10B of article
          6243e. V.T.C.S., are not in violation of the
          Federal Age Discrimination Act, 29 U.S.C. 623, by
          reason of setting a maximum age of 35 years for
          beginning eligibility in      a   municipal  fire
          department pension fund.




                                    d-h  Very truly your



                                         JIM
                                                m


                                                 MATTOX
                                         Attorney General of Texas



                                p. 455
.




    Honorable Lee F. Jackson - Page 3   (JM-108)




    TOM GREEN
    First Assistant Attorney General

    DAVID R. RICHARDS
    Executive Assistant Attorney General

    Prepared by Bruce Youngblood
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    Rick Gilpin, Chairman
    Jon Bible
    Colin Carl
    Susan Garrison
    Jim Moellinger
    Nancy Sutton
    Bruce Youngblood




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