Untitled Texas Attorney General Opinion ( 1978 )

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
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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.
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Honorable Hal H. Hood - Page3 (H-1316)
APPROVED:
Opinion Committee
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