73R8522 SOS-F
By Turner of Harris H.B. No. 1748
Substitute the following for H.B. No. 1748:
By Marchant C.S.H.B. No. 1748
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the firemen's relief and retirement fund in certain
1-3 municipalities.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 2(l), Chapter 432, Acts of the 64th
1-6 Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil Statutes),
1-7 is amended to read as follows:
1-8 (l)(1) The board may, from fund assets, purchase from an
1-9 insurer licensed to do business in this state insurance to cover
1-10 liabilities and losses of the fund and to indemnify and hold the
1-11 members of the board and employees of the board, individually and
1-12 collectively, harmless from the effects and consequences of their
1-13 acts, omissions, and conduct within the scope of their official
1-14 capacity as fiduciaries or cofiduciaries or within the scope of
1-15 what the board member or employee believed in good faith, at the
1-16 time, to be the board member's or employee's official capacity.
1-17 However, an insurance company through which insurance is purchased
1-18 under this subsection has a cause of action against a board member
1-19 or employee to the extent that a loss results from the board
1-20 member's or employee's wilful and malicious misconduct or gross
1-21 negligence.
1-22 (2) If insurance under Subdivision (1) of this
1-23 subsection is unavailable, insufficient, inadequate, or not in
1-24 effect, the board may indemnify board members or employees of the
2-1 board for liability imposed as damages and for reasonable costs and
2-2 expenses incurred by those individuals in defense of an alleged
2-3 act, error, or omission committed in the individual's official
2-4 capacity or within the scope of what the board member or employee
2-5 believed in good faith, at the time, to be the board member's or
2-6 employee's official capacity. The board may not indemnify a board
2-7 member or an employee for the amount of a loss that results from
2-8 the board member's or the employee's wilful and malicious
2-9 misconduct or gross negligence.
2-10 (3) The board may establish a self-insurance fund to
2-11 pay claims for indemnification as provided by Subdivision (2) of
2-12 this subsection. The board shall provide that the self-insurance
2-13 fund must be limited to an amount not to exceed the greater of
2-14 three percent of the fund assets or $5 million. The self-insurance
2-15 fund shall be invested in the same manner as other assets of the
2-16 fund, and all earnings and losses from investing the self-insurance
2-17 fund shall be credited to the self-insurance fund unless that
2-18 credit exceeds the limit on the self-insurance fund set by the
2-19 board or this subdivision. Amounts held in the self-insurance fund
2-20 may not be included in the actuarial valuation for purposes of
2-21 determining:
2-22 (A) the city contribution rate; or
2-23 (B) the assets available to satisfy the
2-24 actuarial liabilities of the fund to pay service, disability, or
2-25 death benefits provided by this Act.
2-26 (4) A decision to indemnify or make a reimbursement
2-27 out of the self-insurance fund must be made by a majority vote of
3-1 board members eligible to vote on the matter. If the proposed
3-2 indemnification or reimbursement is of a board member, that board
3-3 member may not vote on the matter.
3-4 SECTION 2. Section 4, Chapter 432, Acts of the 64th
3-5 Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil Statutes),
3-6 is amended by adding Subsection (o) to read as follows:
3-7 (o) Notwithstanding any other provision of this Act, a
3-8 member or survivor receiving pension or survivor benefits may make
3-9 a one-time election to receive a smaller pension or survivor
3-10 benefit and may make a one-time election not to receive any future
3-11 cost-of-living increases in the pension or survivor benefits
3-12 received by the person or the person's beneficiary. An election
3-13 under this subsection must be made in writing and submitted to the
3-14 board of trustees for approval. On the date the board grants
3-15 approval of an election under this subsection, the election is
3-16 irrevocable.
3-17 SECTION 3. Section 6, Chapter 432, Acts of the 64th
3-18 Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil Statutes),
3-19 is amended to read as follows:
3-20 Sec. 6. Disability. (a)(1) A member is eligible for an
3-21 on-duty disability allowance under Subdivision (2) or (3) of this
3-22 subsection on:
3-23 (A) application to the board of trustees for
3-24 disability benefits by the member or the member's legal
3-25 representative;
3-26 (B) a finding by the board of trustees that the
3-27 member is physically or mentally disabled because of a bodily
4-1 injury received in, or illness caused by, the performance of the
4-2 member's duties; and
4-3 (C) a finding by the board of trustees that the
4-4 disability of the member is likely to be permanent.
4-5 (2) If the board of trustees finds that an eligible
4-6 member is not capable of performing the usual and customary duties
4-7 of the member's classification or position because of the member's
4-8 disability, the board shall retire the member on a monthly
4-9 disability allowance in an amount equal to the greater of:
4-10 (A) 50 percent of the member's average monthly
4-11 salary; or
4-12 (B) the benefit the member would have been
4-13 entitled to receive based on years of service under Section 4 of
4-14 this Act if the member had retired from service on the effective
4-15 date of the member's disability retirement.
4-16 (3) If the board of trustees finds that an eligible
4-17 member is not capable of performing any substantial gainful
4-18 activity because of the member's disability, the board shall retire
4-19 the member on a monthly disability allowance in an amount equal to
4-20 the greater of:
4-21 (A) 75 percent of the member's average monthly
4-22 salary; or
4-23 (B) the benefit the member would have been
4-24 entitled to receive based on years of service under Section 4 of
4-25 this Act if the member had retired from service on the effective
4-26 date of the member's disability retirement <Whenever a member
4-27 becomes physically or mentally disabled while in or as a
5-1 consequence of the performance of his duty or becomes physically or
5-2 mentally disabled from any cause whatsoever after he has
5-3 participated in a fund for a period of 20 years or more, the board
5-4 of trustees shall, on his request, or without a request, if they
5-5 determine that the member is not capable of performing the usual
5-6 and customary duties of his classification or position, retire the
5-7 member on a monthly disability allowance of an amount equal to 50
5-8 percent of his average monthly salary for the highest 36 months
5-9 during his participation, or so much thereof as he may have
5-10 served>.
5-11 (b)(1) A member is eligible for an off-duty disability
5-12 allowance under Subdivision (2) of this subsection on:
5-13 (A) application to the board of trustees for
5-14 disability benefits by the member or the member's legal
5-15 representative;
5-16 (B) a finding by the board of trustees that:
5-17 (i) the member is physically or mentally
5-18 disabled from any cause other than an injury received in, or
5-19 illness caused by, the performance of the member's duties; and
5-20 (ii) the member is not capable of
5-21 performing the usual and customary duties of the member's
5-22 classification or position; and
5-23 (C) a finding by the board of trustees that the
5-24 disability of the member is likely to be permanent.
5-25 (2) The board of trustees shall retire the member on a
5-26 monthly disability allowance in an amount equal to the greater of:
5-27 (A) 25 percent of the member's average monthly
6-1 salary, plus 2-1/2 percent of the member's average monthly salary
6-2 for each full year of service and participation in the fund, except
6-3 that the total monthly disability allowance under this paragraph
6-4 may not exceed 50 percent of the member's average monthly salary;
6-5 or
6-6 (B) the benefit the member would have been
6-7 entitled to receive based on years of service under Section 4 of
6-8 this Act if the member had retired from service on the effective
6-9 date of the member's disability retirement <Whenever a member
6-10 becomes disabled from any cause other than a disability acquired in
6-11 the performance of his duty as a fire fighter, a monthly pension
6-12 allowance shall be paid to the member. Such monthly pension
6-13 allowance shall be equal to 25 percent of the average monthly
6-14 salary of the member, plus two and one-half percent of the average
6-15 monthly salary for each full year of service and of participation
6-16 in a fund, except that the monthly pension allowance shall not
6-17 exceed 50 percent of the average monthly salary. The average
6-18 monthly salary shall be based on the monthly average of the
6-19 member's salary for the highest 36 months during his participation
6-20 or so much as he may have served preceding the date of the
6-21 retirement>.
6-22 (c) A member is not eligible for an on-duty or off-duty
6-23 disability allowance as provided by Subsection (a) or (b) of this
6-24 section if the member becomes disabled as a direct and proximate
6-25 result of a condition that existed on the date the member began
6-26 membership in the fund. If the member is not eligible to retire
6-27 under Section 4 of this Act, the member may elect a refund of
7-1 benefits or, if eligible, a deferred pension under Section 5 of
7-2 this Act. A member has a preexisting condition under this
7-3 subsection if the member has:
7-4 (1) symptoms that would cause an ordinarily prudent
7-5 person to seek diagnosis, care, or treatment within a five-year
7-6 period before the effective date of the member's membership in the
7-7 fund; or
7-8 (2) a condition for which medical advice or treatment
7-9 was recommended by or received from a physician within a five-year
7-10 period before the effective date of the member's membership in the
7-11 fund.
7-12 (d) The board of trustees shall determine the disability of
7-13 a member in accordance with uniform principles consistently applied
7-14 on the basis of medical or other evidence that the board determines
7-15 is necessary or desirable.
7-16 (e) In this section, "average monthly salary" means the
7-17 monthly average of the member's salary for the highest 36 months
7-18 during the member's participation in the fund or, if the member
7-19 participated in the fund for less than 36 months, the monthly
7-20 average of the member's salary for the number of months the member
7-21 participated in the fund <If the member is eligible to be retired
7-22 under the provisions of Section 4 of this Act, he may elect to have
7-23 his monthly pension allowance calculated under that section>.
7-24 SECTION 4. Section 7(e), Chapter 432, Acts of the 64th
7-25 Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil Statutes),
7-26 is amended to read as follows:
7-27 (e) Any member may designate one or more beneficiaries <a
8-1 beneficiary> to receive the total contribution made by the member
8-2 to the fund if the member has no eligible survivors prescribed in
8-3 Section 11 of this Act. The member shall file a written
8-4 designation of beneficiary with the board of trustees of the
8-5 Firemen's Relief and Retirement Fund <stating his beneficiary>.
8-6 Such designation shall include the name and the address of each
8-7 <the> beneficiary. The board shall upon the death of the member
8-8 pay only a total amount equal to the amount contributed by the
8-9 member to the stated beneficiary or beneficiaries except that the
8-10 designated beneficiary or beneficiaries of a member dying after
8-11 August 31, 1987, are <if the board of trustees adopts Section 5(b)
8-12 of this Act by majority vote, a designated beneficiary entitled to
8-13 a distribution because of the death of a member after the date of
8-14 the adoption is> entitled to receive a total amount equal to the
8-15 amount, if any, payable pursuant to Section 5(b) of this Act as if
8-16 the member terminated employment on the date of death. On
8-17 application of a member's estate, the board shall pay the estate an
8-18 amount equal to the amount contributed by the member if the member
8-19 failed to designate a beneficiary. An amount payable under this
8-20 subsection may not escheat to the state.
8-21 SECTION 5. Section 8, Chapter 432, Acts of the 64th
8-22 Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil Statutes),
8-23 is amended by amending Subsection (a) and adding Subsection (d) to
8-24 read as follows:
8-25 (a) No person may be retired <either> for <total or
8-26 temporary> disability, except as provided in this Act, nor receive
8-27 any allowance from the fund, unless and until there has been filed
9-1 with the board of trustees certificates of his disability or
9-2 eligibility signed and sworn to by that person and his physician or
9-3 by any physician selected by the board of trustees. The board of
9-4 trustees, in its discretion, may require other or additional
9-5 evidence of disability before ordering retirement or payment.
9-6 (d)(1) A benefit payable on the death of a member or
9-7 eligible beneficiary may not be paid to a person convicted of
9-8 causing that death but instead is payable to a person who would
9-9 have been entitled to the benefit had the convicted person
9-10 predeceased the decedent. If no person is entitled to the benefit
9-11 under this subdivision, the benefit is payable to the decedent's
9-12 estate.
9-13 (2) Except as provided by Subdivision (3) of this
9-14 subsection, the board is not required to pay a benefit in the
9-15 manner provided by Subdivision (1) of this subsection unless the
9-16 board receives actual notice of the conviction of the person who
9-17 would have been entitled to the benefit.
9-18 (3) The board may suspend payment of a benefit payable
9-19 on the death of a member or an eligible beneficiary on indictment
9-20 of the person who would have been entitled to the benefits, and the
9-21 suspension shall remain in effect until final disposition of the
9-22 charges relating to the cause of death. If the benefit payment is
9-23 suspended under this subdivision and the person is not convicted,
9-24 the benefit is payable with interest computed at the rate earned by
9-25 the fund during the time the benefit payment was suspended.
9-26 (4) For purposes of this subsection, a person has been
9-27 convicted of causing the death of a member or eligible beneficiary
10-1 if the person:
10-2 (A) has pleaded guilty or nolo contendere to, or
10-3 the person has been found guilty by a court of, an offense at the
10-4 trial of which it is established that the person's intentional or
10-5 knowing act or omission caused the death of the member or eligible
10-6 beneficiary, regardless of whether sentence is imposed or probated;
10-7 and
10-8 (B) has no appeal of the conviction pending, and
10-9 the time provided for appeal has expired.
10-10 SECTION 6. Section 10(d)(2), Chapter 432, Acts of the 64th
10-11 Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil Statutes),
10-12 is amended to read as follows:
10-13 (2) The board of trustees shall establish minimum
10-14 physical requirements which shall not exceed the physical
10-15 requirements established by the Commission pursuant to Section
10-16 143.022, Local Government Code, and its subsequent amendments <9,
10-17 Chapter 325, Acts of the 50th Legislature, 1947 (Article 1269m,
10-18 Vernon's Texas Civil Statutes)>, for membership in the fund, which
10-19 physical requirements shall be the same for all applicants. At the
10-20 time that physical examinations are administered on behalf of the
10-21 city, each applicant shall be provided written notice that a copy
10-22 of the results of the examination will be forwarded to the board of
10-23 trustees of the fund to determine eligibility for membership in the
10-24 fund and the existence of any preexisting conditions. Within 10
10-25 days after the date of a physical examination performed on an
10-26 applicant for a beginning position in the fire department as
10-27 required by Section 143.022, Local Government Code, and its
11-1 subsequent amendments <9, Chapter 325, Acts of the 50th
11-2 Legislature, 1947 (Article 1269m, Vernon's Texas Civil Statutes)>,
11-3 the city shall provide to the board of trustees <shall obtain> a
11-4 copy of all documents resulting from the physical examination. The
11-5 board of trustees may require additional physical examinations if
11-6 necessary to determine whether the applicant meets the minimum
11-7 physical requirements for membership in the fund. The fund
11-8 <applicant> shall pay the cost of any additional physical
11-9 examination required by the board of trustees. Within a reasonable
11-10 time after receiving the examination reports of an applicant, the
11-11 <The> board of trustees shall, on the basis of one or more physical
11-12 examinations, determine whether the applicant meets the minimum
11-13 physical requirements for membership in the fund. The board of
11-14 trustees shall notify the applicant and the chief of the fire
11-15 department not later than 10 calendar days after the date of the
11-16 board decision on the applicant's satisfaction of the minimum
11-17 physical requirements <before the first day of cadet training of
11-18 their acceptance or rejection of the applicant>. If the board of
11-19 trustees rejects the applicant, the applicant may request further
11-20 examination by a board of three physicians appointed by the board
11-21 of trustees at the expense of the applicant. If a physician board
11-22 finds that an applicant meets the minimum physical requirements for
11-23 membership in the fund, the board of trustees shall accept the
11-24 applicant for membership. If accepted by the board of trustees,
11-25 the applicant's membership is effective on being appointed to the
11-26 position of probationary fire fighter.
11-27 SECTION 7. Section 15, Chapter 432, Acts of the 64th
12-1 Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil Statutes),
12-2 is amended to read as follows:
12-3 Sec. 15. Medical examination of member retiring for
12-4 disability or person claiming survivor benefits as disabled child.
12-5 (a) The board of trustees, in its discretion, at any time may
12-6 cause any person retired for disability or receiving survivor
12-7 benefits as a disabled child under the provisions of this Act to
12-8 appear and undergo a medical examination by any physician appointed
12-9 or selected by the board of trustees for the purpose.
12-10 (b) A person retired for disability under Section 6(a)(3) of
12-11 this Act or a person receiving survivor benefits as a disabled
12-12 child under this Act shall file an annual report of employment
12-13 activities and earnings with the board of trustees. The board of
12-14 trustees shall establish the form of the report and the time for
12-15 filing the report.
12-16 (c) The<, and the> result of the examination, the <and>
12-17 report by the physician, and the report of employment activities
12-18 and earnings shall be considered by the board of trustees in
12-19 determining whether the relief in the case shall be continued,
12-20 increased (if less than the maximum provided), decreased, or
12-21 discontinued. Should any person receiving relief under the
12-22 provisions of this Act, after due notice from the board of
12-23 trustees, fail to appear and be reexamined or fail to file the
12-24 report of employment activities and earnings, unless excused by the
12-25 board, <fail to appear or refuse to submit to reexamination,> the
12-26 board of trustees may in its discretion reduce or entirely
12-27 discontinue relief.
13-1 SECTION 8. Section 22, Chapter 432, Acts of the 64th
13-2 Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil Statutes),
13-3 is amended to read as follows:
13-4 Sec. 22. EMPLOYMENT OF PROFESSIONAL INVESTMENT MANAGERS
13-5 <COUNSELING SERVICE>. The board of trustees may engage and employ
13-6 professional investment managers as provided by Section 802.204,
13-7 Government Code, and its subsequent amendments <counselors to
13-8 advise and assist the board in the investment of the assets of the
13-9 fund. The investment counseling service must be provided by a
13-10 nationally known organization whose business functions include
13-11 rendering continuous investment advisory service to public pension
13-12 and retirement funds. The city may pay the entire cost of this
13-13 counseling service; if not paid by the city the cost may be paid
13-14 from the assets of the fund>.
13-15 SECTION 9. The importance of this legislation and the
13-16 crowded condition of the calendars in both houses create an
13-17 emergency and an imperative public necessity that the
13-18 constitutional rule requiring bills to be read on three several
13-19 days in each house be suspended, and this rule is hereby suspended,
13-20 and that this Act take effect and be in force from and after its
13-21 passage, and it is so enacted.