                     The Attorney               General of Texas
                                         December        29,   1978

JOHN L. HILL
Attorney General


                   Honorable Hal H. Hood                              Opinion No. H- 13 16
                   Firemen’s Pension Commissioner
                   503-F Sam Houston State Office Building            Re: Eligibility for membership
                   Austin, Texas 78701                                in Firemen’s Relief and Retire-
                                                                      ment Fund.

                   Dear Commissioner    Hood:

                         You have requested our opinion regarding the scope of eligibility for
                   participation in the Firemen’s Relief and Retirement   Fund under article
                   6243e, V.T.C.S.

                         A broad and liberal interpretation should be given to the construction of
                   a pension law in order to achieve the beneficial intentions of the legislature.
                   Board of Firemen’s Relief and Retirement Fund Trustees v. Marks, 237 S.W.2d
                   420 (Tex. Civ. App. - Austin 1951), rev’d on other grounds, 242 S.W.2d 181
                   (Tex. 1950 (claim for disability pension).       Article 6243e makes numerous
                   references to ‘duly appointed and enrolled” firemen. No precise definition is
                   given for a “fireman,” although that term is defined in other pension statutes
                   as “an active member of a regularly organized fire department               of an
                   incorporated city.” V.T.C.S. arts. 6243e.l 5 (2), 6243e.2 5 (2). We believe
                   that an individual need not be engaged in the actual task of fighting fires in
                   order to be a fireman for purposes of article 6243e. We are led to this
                   conclusion .in part by the language of section 2 of article 6243e.2. That
                   section requires that, in certain large cities the Board of Trustees who
                   administer the pension fund be composed of representatives         from: (1) the
                   “Suppression Division” of the fire department, (2) the division whose members
                   devote full time to prevention and investigation of fire or are permanently
                   assigned to the “Record Division or Fire Chief’s Office,” and (3) the “Fire
                   Alarm Operators Division or the Fire Department Repair Division.” The same
                   reference to these three categories was found in article 6243e when that
                   statute applied to larger cities. Acts 1957, 55th Leg., ch. 275. We think that
                   this representation   on the board of trustees reveals the intended scope of
                   oarticioation in the oension olan. COIIIDarable conclusions have been reached
                   by courts of other s’tates fa;?ed with co’nstruing pension statutes for firemen.
                   Quinn v. Retirement      Board, 289 N.E.2d 117, 122 (Ill.       App. 1972) (fire
                   commissioner was a fireman although not actively engaged in fire fighting);
                   Maust v. Firemen’s Relief Assoc., 282 A.2d 239, 240 (Pa. 1971) (actual fire




                                                    P.    5178
Honorable Hal H. Hood     -   Page 2    (~-1316)



fighting not required to obtain pension rights); Leffingw ell v. kiersted, 65 A. 1029, 1030
(N.J. 1907); Knoll v. City of Los Angeles 132 P.m3       (Cal’f 1942) (clerical worker who
prepared statistical data was member of)fire department fir’pension purposes). But see
-Thatcher v. Hogan, 121 N.E.2d 130 (Ohio Ct. Corn. Pleas 1954) (lineman cable splicer
        le for fireman pension plan).

         We caution however, that not every employee on a fire department          may be
considered a member of that department        for pension purposes.     We  believe  one’s
employment must bear a significant relationship to the duties of a fire department which
is a question of fact we cannot determine in the opinion process.      See Firemen’s and
Policemen’s Civil Service Comm. v. Wells, 306 S.W.2d 895 (Tex. 1957manitor of police
deoartment was not eneaeed in the active duties of law enforcement          and thus was
ineligible for pension). - I

         You also ask who determines eligibility.     It is our opinion that eligibility to
participate  in the pension fund is determined in the first instance by the Board of
Trustees, established by section 3 of article 6243e, whose duties include the authority to

             receive, handle and control, manage, and diipurse such Fund
             . . . [andI to hear and determine all applications for retire-
             ment, claims for disability, either partial or total, and to
             designate the beneficiaries or persons entitled to participate
             therein. . . .

                                       SUMMARY

             All members of a fire department whose duties include the
             prevention, suppression, investigation,      maintenance and re-
             lated clerical work are eligible to participate in the Firemen’s
             Relief and Retirement     Fund.    Eligibility is determined by
             Board of Trustees.




                                                   P.   5179
s



    Honorable Hal H. Hood   -   Page3   (H-1316)




    APPROVED:




Opinion Committee




                                            P. 5180
