          -E      A'ITORNEYGENEEXAL

                      OF   TEXAS




                     February 25, 1953

Hon. G. F. Wllllam~       opinion Ho. s-11.
Firemen's Pension CornmIssioner
702 Tribune Building
Austin, Texas             Re: Eliglbilitg of the Texas
                               Municipal Retirement System
                               to receive funds appropriated
                               for the Firemen's Relief and
Dear Sir:                      RetirementFund.
          Reference 18 made to your request for an opinion
which reada in part a8 follows:
            "I have a problem with a local pension
       board on which 5 shall have to request your
       advice or ruling. It concerns a full-paid
       Fire Department whose flremen have been
       participatingIn the State Firemen's Pension
       System since the beginnlng, when the Pension
       Law was enacted. . . .
            "On September 16, 1952, I was notirled
       that they had transferredall of their funds
       to the Municipal Retirement System on March
       10, 1952. On September 11, 1952, they returned
       a State Warrant . . . which had been mailed
       to the Secretary of the Firemen's Pension
       Board or their city. They requested that I
       change payee on the warrant rrom the 'Secretary,
       Firemen's Relier and Retirement, to the 'Texas
       Municipal Retirement System.' . . .
            "I would appreciate very much if you
       woul,dfurnish me your ruling a8 to vhat authority
       I have to take action In the matter."
          Chapter 125, Acts or the 45th Legislature,
Regular Session 1937, Page 229 (codifieda8 Article
6243e, V.C.S.) provided for the establishmentof the
Firemen's Reller and Retirement Fund. Section 2 of
Article 62~43e,levied an occupation or license tax on
Insurance companies with the major portion of the funds
received rrom this tax to be deposited In the Firemen's
Relier and RetirementFund.
Hon. G. F. Williams, p8ge 2 (S-11).


          The tax on fir0 insurancepremluma van held
unconstitutionalby American Alliance Ins. Co. v. Board
of Ins. Com'rs., 126 S Y 2d 741 (Tex. Civ. App. 1939
error ref.) as vIolat& the due process and equal '
protection irovlslons of the State and Federal Con-
stitutionaand impinging on the powers and duties of
the Board of Insurance Commiseloners. Since this
holding, the Legislature has appropriatedbiennially
from the General Revenue Fund to finance the FIremen's
Relier and Retirement Fund.    _
          The Texas Municipal Retirement System,,on
the other hand, w&e set up by the Legislature ae a
self-sustainingagency. Acts 0th Leg., R.S. 1947,
Ch. 75, page 108. Section 4(b74 of Chapter 75 provlded:
          "The Legislature shall never make
     an appropriationto pay any of the cost   0r
     thle eyatem."
         However, Section 10 of the same act provided:
          "When the members of the Fire Department
     of a municipalityby their electionand with
     the consent of their employer become participants
     of this municipal system upon the voluntary
     applicationof the employing munlclpallty&he
     Fih~dil:I1;~f,~an~~,-.oP~1thq
                           'Firemen'sRelief and
     RetirementFund' or such tinicipalltyand
     all tuture payments to such Fund may be
     traneferredto the Board and credlted to
     its Prior Service Reserve Fund.
          "All distributiona amd payments vhlch
     could be made annually to a 'Firemen'sRelief'
     and Retirement Fund' for the rlremea of any.
     participatingmunicipality, ir the rlremen
     of such municipalitywere not covered by this
     or 8ome other Pensloa or RetirementSystem
     or if such participatingmunicipalityhas or
     had taken the proper steps to 6ecure such funda,
     shall be paid over to the Board and credited
     for the benefits of such riremen as the Board
     shall direct."
          Section 4 and Section 10 of Chapter 75 were
clearly conflictingIn nature. While providing that
the Legislature should never appropriatefunds to pay
any of the cost of the Texas MunicipalRetirement Sya&em,
the act also provided that funds otherwisepayable to a
Bon. 0. F. Wllliame, page 3 (S-11).


FIremen Fund should be paid to the MunicipalRetlre-
ment System.
          The 51st Legislature.amended the above statute
relating to the Municipal Retirement Syatem. In the
amended act the prohibition again&t leglslatltieappro-
priations to the Munlci al Retirement stem was deleted.
Acta 518t Leg., R.S. 19$9, Ch. 24, p. 2
                                      T (codifiedae
Article 624311,V.C.S.). The Legislature in the 8ame
act appropriated#jC,CCC.CC for that lbyatemba a loan.
Section 10 relating to payment to the Municipal Retlre-
ment System of amounts from the Firemen'8 Relief and
RetirementFund va8 re-enacted by the Leglelatureas
Section XI of the amended act.
          It 18 our opinion that Section XX of Article
6243h, V.C.S., ineofar ae it concern8 State~funda,Is
uncon8tltutlonalas it violates Article III, Section
511 of the State Constitution,vhich provides:
          *The Legislature of thla State shall
     have the authority to provide for a system of
     retirement and disability peaslQti8for appolntive
     officers and employee8 of cities and town8 to
     operate statevlde or by districts under such
     a plan and program a8 the Legislature shall
     direct and shall provide that participation
     therein by cltiea and towns shall be volun-
     tary; provided that the Legislature shall
     never make an appropriationto pay any of
     the cost of any system authoricedby thle
     Section.'
          Hence you would not be authorlzed to make a pay-
ment to the Municipal Retirement System from funds
appropriatedby the Legislature for the Firemen's Relief
and RetirementFund.

                       SUMMARY

          Under the fact8 submitted,the Flre-
     men'8 Pension Comml88loner le not author-
     ized to certify a payment to the Municipal
FioniG. F. Wllllams, page .!I
                            (S-11).


     Retirement System rrom the Firemen'6
     Relief and Retirement Fund appropriatIon.

APPROVED:                  Yours very truly,
Rudy G. R1c.e              JOHNBEN SHEPPERD
State Affairs Division
Wlllis'Gre8ham
Reviewer
Robert S. Trotti
First ASsiStant
John Ben Shepperd
Attorney General
