By: Turner, S. H.B. No. 1748
73R5861 SOS-F
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 7(e), 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 (e) Any member may designate one or more beneficiaries <a
3-21 beneficiary> to receive the total contribution made by the member
3-22 to the fund if the member has no eligible survivors prescribed in
3-23 Section 11 of this Act. The member shall file a written
3-24 designation of beneficiary with the board of trustees of the
3-25 Firemen's Relief and Retirement Fund <stating his beneficiary>.
3-26 Such designation shall include the name and the address of each
3-27 <the> beneficiary. The board shall upon the death of the member
4-1 pay only a total amount equal to the amount contributed by the
4-2 member to the stated beneficiary or beneficiaries except that the
4-3 designated beneficiary or beneficiaries of a member dying after
4-4 August 31, 1987, are <if the board of trustees adopts Section 5(b)
4-5 of this Act by majority vote, a designated beneficiary entitled to
4-6 a distribution because of the death of a member after the date of
4-7 the adoption is> entitled to receive a total amount equal to the
4-8 amount, if any, payable pursuant to Section 5(b) of this Act as if
4-9 the member terminated employment on the date of death. On
4-10 application of a member's estate, the board shall pay the estate an
4-11 amount equal to the amount contributed by the member if the member
4-12 failed to designate a beneficiary. An amount payable under this
4-13 subsection may not escheat to the state.
4-14 SECTION 4. Section 8, Chapter 432, Acts of the 64th
4-15 Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil Statutes),
4-16 is amended by adding Subsection (d) to read as follows:
4-17 (d)(1) A benefit payable on the death of a member or
4-18 eligible beneficiary may not be paid to a person convicted of
4-19 causing that death but instead is payable to a person who would
4-20 have been entitled to the benefit had the convicted person
4-21 predeceased the decedent. If no person is entitled to the benefit
4-22 under this subdivision, the benefit is payable to the decedent's
4-23 estate.
4-24 (2) Except as provided by Subdivision (3) of this
4-25 subsection, the board is not required to pay a benefit in the
4-26 manner provided by Subdivision (1) of this subsection unless the
4-27 board receives actual notice of the conviction of the person who
5-1 would have been entitled to the benefit.
5-2 (3) The board may suspend payment of a benefit payable
5-3 on the death of a member or an eligible beneficiary on indictment
5-4 of the person who would have been entitled to the benefits, and the
5-5 suspension shall remain in effect until final disposition of the
5-6 charges relating to the cause of death. If the benefit payment is
5-7 suspended under this subdivision and the person is not convicted,
5-8 the benefit is payable with interest computed at the rate earned by
5-9 the fund during the time the benefit payment was suspended.
5-10 (4) For purposes of this subsection, a person has been
5-11 convicted of causing the death of a member or eligible beneficiary
5-12 if the person:
5-13 (A) has pleaded guilty or nolo contendere to, or
5-14 the person has been found guilty by a court of, an offense at the
5-15 trial of which it is established that the person's intentional,
5-16 knowing, or reckless act or omission caused the death of the member
5-17 or eligible beneficiary, regardless of whether sentence is imposed
5-18 or probated; and
5-19 (B) has no appeal of the conviction pending and
5-20 the time provided for appeal has expired.
5-21 SECTION 5. Section 10(d)(2), Chapter 432, Acts of the 64th
5-22 Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil Statutes),
5-23 is amended to read as follows:
5-24 (2) The board of trustees shall establish minimum
5-25 physical requirements which shall not exceed the physical
5-26 requirements established by the Commission pursuant to Section
5-27 143.022, Local Government Code, and its subsequent amendments <9,
6-1 Chapter 325, Acts of the 50th Legislature, 1947 (Article 1269m,
6-2 Vernon's Texas Civil Statutes)>, for membership in the fund, which
6-3 physical requirements shall be the same for all applicants. At the
6-4 time that physical examinations are administered on behalf of the
6-5 city, each applicant shall be provided written notice that a copy
6-6 of the results of the examination will be forwarded to the board of
6-7 trustees of the fund to determine eligibility for membership in the
6-8 fund and the existence of any preexisting conditions. Within 10
6-9 days after the date of a physical examination performed on an
6-10 applicant for a beginning position in the fire department as
6-11 required by Section 143.022, Local Government Code, and its
6-12 subsequent amendments <9, Chapter 325, Acts of the 50th
6-13 Legislature, 1947 (Article 1269m, Vernon's Texas Civil Statutes)>,
6-14 the city shall provide to the board of trustees <shall obtain> a
6-15 copy of all documents resulting from the physical examination. The
6-16 board of trustees may require additional physical examinations if
6-17 necessary to determine whether the applicant meets the minimum
6-18 physical requirements for membership in the fund. The fund
6-19 <applicant> shall pay the cost of any additional physical
6-20 examination required by the board of trustees. Within a reasonable
6-21 time after receiving the examination reports of an applicant, the
6-22 <The> board of trustees shall, on the basis of one or more physical
6-23 examinations, determine whether the applicant meets the minimum
6-24 physical requirements for membership in the fund. The board of
6-25 trustees shall notify the applicant and the chief of the fire
6-26 department not later than 10 calendar days after the date of the
6-27 board decision on the applicant's satisfaction of the minimum
7-1 physical requirements <before the first day of cadet training of
7-2 their acceptance or rejection of the applicant>. If the board of
7-3 trustees rejects the applicant, the applicant may request further
7-4 examination by a board of three physicians appointed by the board
7-5 of trustees at the expense of the applicant. If a physician board
7-6 finds that an applicant meets the minimum physical requirements for
7-7 membership in the fund, the board of trustees shall accept the
7-8 applicant for membership. If accepted by the board of trustees,
7-9 the applicant's membership is effective on being appointed to the
7-10 position of probationary fire fighter.
7-11 SECTION 6. Section 6, Chapter 432, Acts of the 64th
7-12 Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil Statutes),
7-13 is amended to read as follows:
7-14 Sec. 6. Disability. (a) Whenever a member becomes
7-15 physically or mentally disabled while in or as a consequence of the
7-16 performance of his duty or becomes physically or mentally disabled
7-17 from any cause whatsoever after he has participated in a fund for a
7-18 period of 20 years or more, the board of trustees shall, on his
7-19 request, or without a request, if they determine that the member is
7-20 not capable of performing the usual and customary duties of his
7-21 classification or position, retire the member on a monthly
7-22 disability allowance of an amount equal to 50 percent of his
7-23 average monthly salary for the highest 36 months during his
7-24 participation, or so much thereof as he may have served.
7-25 (b) Whenever a member becomes disabled from any cause other
7-26 than a disability acquired in the performance of his duty as a fire
7-27 fighter, a monthly pension allowance shall be paid to the member.
8-1 Such monthly pension allowance shall be equal to 25 percent of the
8-2 average monthly salary of the member, plus two and one-half percent
8-3 of the average monthly salary for each full year of service and of
8-4 participation in a fund, except that the monthly pension allowance
8-5 shall not exceed 50 percent of the average monthly salary. The
8-6 average monthly salary shall be based on the monthly average of the
8-7 member's salary for the highest 36 months during his participation
8-8 or so much as he may have served preceding the date of the
8-9 retirement.
8-10 (c) A member is not eligible for an on-duty or off-duty
8-11 disability pension as provided by Subsection (a) or (b) of this
8-12 section if the member becomes disabled as a direct and proximate
8-13 result of a condition that existed on the date the member began
8-14 membership in the fund. If the member is not eligible to retire
8-15 under Section 4 of this Act, the member may elect a refund of
8-16 benefits or, if eligible, a deferred pension under Section 5 of
8-17 this Act. A member has a preexisting condition under this
8-18 subsection if the member has:
8-19 (1) symptoms that would cause an ordinarily prudent
8-20 person to seek diagnosis, care, or treatment within a five-year
8-21 period before the effective date of the member's membership in the
8-22 fund; or
8-23 (2) a condition for which medical advice or treatment
8-24 was recommended by or received from a physician within a five-year
8-25 period before the effective date of the member's membership in the
8-26 fund.
8-27 (d) If the member is eligible to be retired under the
9-1 provisions of Section 4 of this Act, he may elect to have his
9-2 monthly pension allowance calculated under that section.
9-3 SECTION 7. Section 22, Chapter 432, Acts of the 64th
9-4 Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil Statutes),
9-5 is amended to read as follows:
9-6 Sec. 22. EMPLOYMENT OF PROFESSIONAL INVESTMENT MANAGERS
9-7 <COUNSELING SERVICE>. The board of trustees may engage and employ
9-8 professional investment managers as provided by Section 802.204,
9-9 Government Code, and its subsequent amendments <counselors to
9-10 advise and assist the board in the investment of the assets of the
9-11 fund. The investment counseling service must be provided by a
9-12 nationally known organization whose business functions include
9-13 rendering continuous investment advisory service to public pension
9-14 and retirement funds. The city may pay the entire cost of this
9-15 counseling service; if not paid by the city the cost may be paid
9-16 from the assets of the fund>.
9-17 SECTION 8. The importance of this legislation and the
9-18 crowded condition of the calendars in both houses create an
9-19 emergency and an imperative public necessity that the
9-20 constitutional rule requiring bills to be read on three several
9-21 days in each house be suspended, and this rule is hereby suspended,
9-22 and that this Act take effect and be in force from and after its
9-23 passage, and it is so enacted.