1-1                                   AN ACT

 1-2     relating to a firefighters' 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.  Title 109, Revised Statutes, is amended by adding

 1-6     Article 6243e.2(1) to read as follows:

 1-7           Art. 6243e.2(1).  FIREFIGHTERS' RELIEF AND RETIREMENT FUND IN

 1-8     MUNICIPALITIES OF AT LEAST 1,600,000 POPULATION

 1-9           Sec. 1.  DEFINITIONS.  In this article:

1-10                 (1)  "Average monthly salary" means one thirty-sixth of

1-11     the member's salary as a firefighter for the member's highest 78

1-12     biweekly pay periods during the member's participation in the fund

1-13     or, if the member has participated in the fund for less than three

1-14     years, the total salary paid to the member for the periods the

1-15     member participated in the fund divided by the number of months the

1-16     member has participated in the fund.  If a member is not paid on

1-17     the basis of biweekly pay periods, "average monthly salary" is

1-18     determined on the basis of the number of pay periods under the

1-19     payroll practices of the municipality sponsoring the fund that most

1-20     closely correspond to 78 biweekly pay periods.

1-21                 (2)  "Board" or "board of trustees" means the board of

1-22     trustees of a firefighters' relief and retirement fund established

1-23     under this article.

1-24                 (3)  "Code" means the federal Internal Revenue Code of

 2-1     1986.

 2-2                 (4)  "Deferred retiree" means a member who is eligible

 2-3     for a benefit under Section 8(a) of this article.

 2-4                 (5)  "Disabled child" means any individual who is the

 2-5     child of a member by birth or adoption and who is totally disabled

 2-6     as a result of a physical or mental illness or injury, including

 2-7     retardation, at the time the member dies or who becomes so disabled

 2-8     before reaching 18 years of age.  The term includes a child the

 2-9     board determines is unable to pursue any gainful employment.

2-10                 (6)  "DROP" means the deferred retirement option plan

2-11     under Section 5 of this article.

2-12                 (7)  "DROP account" means the notional account

2-13     established to reflect the credits, contributions, and earnings or

2-14     losses of a member who has made a DROP election in accordance with

2-15     Section 5 of this article.

2-16                 (8)  "Eligible child" means a child of a member by

2-17     birth or adoption who is unmarried and under 18 years of age, a

2-18     disabled child, or under 23 years of age, unmarried, and a

2-19     full-time student enrolled in an accredited college or university,

2-20     but only if the member executes an election permitting the child to

2-21     be treated as an eligible child in accordance with procedures

2-22     established by the board or if the member does not have an eligible

2-23     spouse.

2-24                 (9)  "Eligible parent" means a parent of a member, by

2-25     birth or by adoption while the member was a minor, who proves to

2-26     the satisfaction of the board that the parent was a dependent of

2-27     the member immediately before the member's death.

 3-1                 (10)  "Eligible spouse" means:

 3-2                       (A)  in the case of a member who dies after June

 3-3     30, 1998, a spouse to whom the member was married at the time of

 3-4     the member's death; or

 3-5                       (B)  in the case of a member who dies before July

 3-6     1, 1998, a spouse to whom the member was married at the time the

 3-7     member's benefit under this article is scheduled to begin and at

 3-8     the time of the member's death.

 3-9                 (11)  "Firefighter" means a full-time, fully paid,

3-10     active, classified member of a regularly organized fire department

3-11     of an incorporated municipality  with a fund established under this

3-12     article.

3-13                 (12)  "Fund" means a firefighters' relief and

3-14     retirement fund established under this article.

3-15                 (13)  "Member" means a firefighter or former

3-16     firefighter who has satisfied the eligibility requirements under

3-17     Section 13 of this article and who has not yet received a

3-18     distribution of the entire benefit to which the person is entitled

3-19     under this article.

3-20                 (14)  "Off-duty disability" means a physical or mental

3-21     disability that:

3-22                       (A)  is likely to be permanent; and

3-23                       (B)  results from a cause other than a bodily

3-24     injury received in, or illness caused by, the performance of a

3-25     member's duties as a firefighter.

3-26                 (15)  "On-duty disability" means a physical or mental

3-27     disability that:

 4-1                       (A)  is likely to be permanent; and

 4-2                       (B)  results from a bodily injury received in, or

 4-3     illness caused by, the performance of the member's duties as a

 4-4     firefighter.

 4-5                 (16)  "Salary" means the amounts includable in gross

 4-6     income of a member plus any amount not includable in gross income

 4-7     under Section 125, Section 402(e)(3) or (h), Section 403(b), or

 4-8     Section 414(h) of the code.

 4-9                 (17)  "Years of participation" means the number of

4-10     years that a member has participated in the fund by making the

4-11     contributions required by this article, as determined under rules

4-12     established by the board.

4-13           Sec. 2.  FUND AND BOARD OF TRUSTEES.  (a)  A firefighters'

4-14     relief and retirement fund is established in each incorporated

4-15     municipality that has a population of at least 1,600,000 and a

4-16     fully paid fire department.

4-17           (b)  The board of trustees of the fund shall be known as the

4-18     "Board of Firefighters' Relief and  Retirement  Fund  Trustees of

4-19     __________, Texas."  The board consists of 10 trustees, including:

4-20                 (1)  the mayor or an appointed representative of the

4-21     mayor;

4-22                 (2)  the treasurer of the municipality or, if there is

4-23     not a treasurer, the secretary, clerk, or other person who by law,

4-24     charter provision, or ordinance performs the duty of treasurer of

4-25     the municipality;

4-26                 (3)  five firefighters who are members of the fund;

4-27                 (4)  one person who is a retired firefighter and a

 5-1     member of the fund with at least 20 years of participation; and

 5-2                 (5)  two persons, each of whom is a registered voter of

 5-3     the municipality, has been a resident of the municipality for at

 5-4     least three years preceding the date of initial appointment, and is

 5-5     not a municipal officer or employee.

 5-6           (c)  To serve as a trustee under Subsection (b)(3) of this

 5-7     section, a person must be elected by ballot of the firefighters who

 5-8     are members of the fund.  That election shall be held during the

 5-9     last quarter of the year preceding the January in which the term of

5-10     a trustee occupying one of those positions expires.  The trustee

5-11     serves a term of three years.  Three of the trustees described

5-12     under Subsection (b)(3) of this section shall be elected from the

5-13     suppression division of the fire department.  One of the trustees

5-14     from the suppression division must have the rank of firefighter or

5-15     engineer/operator, and the position on the board to which that

5-16     trustee is elected is designated as Position I.  One of the

5-17     trustees from the suppression division must have the rank of

5-18     captain or senior captain, and the position on the board to which

5-19     that trustee is elected is designated as Position II.  One of the

5-20     trustees from the suppression division must have the rank of

5-21     district chief, deputy chief, or assistant chief, and the position

5-22     on the board to which that trustee is elected is designated as

5-23     Position III.  One of the trustees described under Subsection

5-24     (b)(3) of this section shall be elected from the fire prevention

5-25     division, and the position on the board to which that trustee is

5-26     elected is designated as Position IV.  One of the trustees

5-27     described under Subsection (b)(3) of this section shall be elected

 6-1     from the fire alarm operators division or the fire department

 6-2     repair division, and the position on the board to which that

 6-3     trustee is elected is designated as Position V.

 6-4           (d)  To serve as a trustee under Subsection (b)(4) of this

 6-5     section, a person must be elected by ballot of those retired

 6-6     members with at least 20 years of participation in the fund.  The

 6-7     election shall be held during the last quarter of every third year

 6-8     starting in 1997.  The trustee serves a three-year term, starting

 6-9     in January after the trustee is elected.

6-10           (e)  To serve as a trustee under Subsection (b)(5) of this

6-11     section, a person must be appointed by the elected members of the

6-12     board.  Each of those trustees serves a staggered term of two

6-13     years.  The appointment or reappointment of one of those trustees

6-14     shall take place in December of each year.

6-15           (f)  If a vacancy occurs in an elected position on the board,

6-16     the vacancy shall be filled in the manner provided in this section

6-17     for the election of the trustee to that position.  The election may

6-18     occur either at the next following regular election of trustees by

6-19     members of the fire department or in a special election called by

6-20     the board.  If a vacancy occurs in a position appointed by the

6-21     elected trustees of the board, that position shall be filled by a

6-22     vote of the elected trustees of the board.  A trustee who is

6-23     elected or selected to fill a vacancy holds office for the

6-24     unexpired term of the trustee who vacated that position.

6-25           (g)  Each trustee of the board shall, at the first board

6-26     meeting following the trustee's most recent election or

6-27     appointment, take an oath of office that the trustee will

 7-1     diligently and honestly administer the affairs of the fund and that

 7-2     the trustee will not knowingly violate or willingly permit this

 7-3     article to be violated.

 7-4           (h)  The board shall annually elect from among the trustees a

 7-5     chair, a vice chair, and a secretary.  The person described under

 7-6     Subsection (b)(2) of this section serves as the treasurer of the

 7-7     fund under penalty of that person's official bond and oath of

 7-8     office.

 7-9           (i)  A trustee of the board may not receive compensation for

7-10     service on the board.

7-11           (j)  A majority of the trustees of the board constitutes a

7-12     quorum to transact business.  An order of the board must be made by

7-13     vote recorded in the minutes of the board's proceedings.  Each

7-14     decision of the board in a matter under the board's jurisdiction is

7-15     final and binding as to each affected firefighter, member, and

7-16     beneficiary, subject only to the rights of appeal specified by this

7-17     article.

7-18           (k)  The board shall receive, manage, and disburse the fund

7-19     for the municipality and shall hear and determine applications for

7-20     retirement and claims for disability and designate the

7-21     beneficiaries or persons entitled to participate as provided by

7-22     this article.

7-23           (l)  The board shall hold regular monthly meetings at a time

7-24     and place as the board by resolution designates and may hold

7-25     special meetings on call of the chair as the chair determines is

7-26     necessary, keep accurate minutes of board meetings and records of

7-27     board proceedings, keep separate from all other municipal funds all

 8-1     money for the use and benefit of the fund, and keep a record of

 8-2     claims, receipts, and disbursements.  A disbursement from the fund

 8-3     may be made in accordance with procedures established by the board.

 8-4           (m)  The municipality shall provide full and timely

 8-5     information to the board on matters relating to the hiring of new

 8-6     firefighters, compensation of members, members' deaths or

 8-7     terminations of service, and such other information concerning

 8-8     firefighters as is reasonably required by the board, from time to

 8-9     time, for the board to administer the fund and provide benefits

8-10     properly.

8-11           (n)  The board shall not later than January 31 of each year

8-12     make and file with the treasurer of the municipality a detailed and

8-13     itemized report of all receipts and disbursements with respect to

8-14     the fund, together with a statement of fund administration, and

8-15     shall make and file other reports and statements or furnish further

8-16     information as from time to time may be required or requested by

8-17     the treasurer of the municipality.

8-18           (o)  The secretary of the board shall, not later than the

8-19     seventh day after the date of each board meeting, forward true

8-20     copies of the minutes of the meeting to each fire station and to

8-21     each division of the fire department.

8-22           (p)  The board shall manage the fund according to the terms

8-23     and purposes of this article and all applicable sections of the

8-24     code and has the powers necessary to accomplish that purpose,

8-25     including the power to:

8-26                 (1)  adopt for the administration of the fund written

8-27     rules and guidelines not inconsistent with this article;

 9-1                 (2)  interpret and construe this article and any

 9-2     summary plan descriptions or benefits procedures, except that each

 9-3     construction must meet any qualification requirements established

 9-4     under Section 401 of the code;

 9-5                 (3)  correct any defect, supply any omission, and

 9-6     reconcile any inconsistency that appears in this article in a

 9-7     manner and to the extent that the board considers expedient to

 9-8     administer this article for the greatest benefit of all members;

 9-9                 (4)  select, employ, and compensate employees the board

9-10     considers necessary or advisable in the proper and efficient

9-11     administration of the fund;

9-12                 (5)  determine all questions, whether legal or factual,

9-13     relating to eligibility for participation, service, or benefits or

9-14     relating to the administration of the fund to promote the uniform

9-15     administration of the fund for the benefit of all members;

9-16                 (6)  establish and maintain records necessary or

9-17     appropriate to the proper administration of the fund; and

9-18                 (7)  compel witnesses to attend and testify before the

9-19     board concerning matters related to the operation of this article

9-20     in the same manner provided for taking of testimony before notaries

9-21     public.

9-22           (q)  The chair may administer oaths to witnesses.

9-23           (r)  The board shall maintain at the offices of the fund the

9-24     original of each rule or guideline adopted under this section and

9-25     shall deliver to the municipality a copy of each adopted rule or

9-26     guideline.

9-27           Sec. 3.  OTHER POWERS OF THE BOARD.  (a)  If the board

 10-1    determines that there is a surplus of funds in an amount exceeding

 10-2    the current demands on the fund, the board may invest the surplus

 10-3    in the manner provided by Chapter 802, Government Code.

 10-4          (b)  The board may employ persons to perform any investment,

 10-5    administrative, legal, medical, accounting, clerical, or other

 10-6    service the board considers appropriate, including:

 10-7                (1)  a certified public accountant or firm of certified

 10-8    public accountants to perform an audit of the fund at times and

 10-9    intervals the board considers necessary;

10-10                (2)  a professional investment manager or firm of

10-11    managers as provided by Section 802.204, Government Code;

10-12                (3)  an actuary or actuarial firm at times and for

10-13    purposes the board considers necessary or appropriate;

10-14                (4)  an attorney or firm of attorneys to advise,

10-15    assist, or represent the board in any legal matter relating to the

10-16    fund, including litigation involving matters under this article; or

10-17                (5)  a physician to examine a firefighter before the

10-18    firefighter becomes a member of the fund or to examine a member or

10-19    beneficiary applying for or receiving a disability pension or

10-20    survivor benefit.

10-21          (c)  A fee incurred in connection with a service or person

10-22    employed under Subsection (b) of this section may be paid from the

10-23    fund, except that the costs of audits under Subsection (b)(1) of

10-24    this section may be paid from the fund only if the municipality

10-25    does not pay that cost.

10-26          (d)  The board may have an actuarial valuation performed each

10-27    year, and for determining the municipality's contribution rate as

 11-1    provided by Section 13(d) of this article, the board may adopt a

 11-2    new actuarial valuation each year, except that an actuarial

 11-3    valuation that will result in an increased municipal contribution

 11-4    rate that is above the statutory minimum may be adopted only once

 11-5    every three years, unless the governing body of the municipality

 11-6    consents to a more frequent increase.

 11-7          (e)  In addition to any other remedy the board has, including

 11-8    any right of set-off from future benefits, the board may recover by

 11-9    civil action from any offending party or from the party's surety

11-10    money paid out or obtained from the fund through fraud,

11-11    misrepresentation, defalcation, theft, embezzlement, or

11-12    misapplication and may institute, conduct, and maintain the action

11-13    in the name of the board for the use and benefit of the fund.

11-14          (f)  On written request from the chair, the municipal

11-15    attorney shall represent the board or the fund in any legal matter,

11-16    including litigation.  The municipal attorney is not entitled to

11-17    compensation from the fund for providing that representation.

11-18          (g)  The board may, from fund assets, purchase from an

11-19    insurer licensed to do business in this state insurance to cover

11-20    liabilities and losses of the fund and to indemnify and hold the

11-21    trustees of the board and employees of the board, individually and

11-22    collectively, harmless from the effects and consequences of their

11-23    acts, omissions, and conduct within the scope of their official

11-24    capacity as fiduciaries or cofiduciaries or within the scope of

11-25    what the board trustee or employee believes in good faith, at the

11-26    time, to be the board trustee's or employee's official capacity.

11-27    An insurance company through which insurance is purchased under

 12-1    this subsection has a cause of action against a board trustee or

 12-2    employee to the extent that a loss results from the board trustee's

 12-3    or employee's wilful and malicious misconduct or gross negligence.

 12-4    If insurance is unavailable, insufficient, inadequate, or not in

 12-5    effect, the board may indemnify a board trustee or employee for

 12-6    liability imposed as damages and for reasonable costs and expenses

 12-7    incurred by that individual in defense of an alleged act, error, or

 12-8    omission committed in the individual's official capacity or within

 12-9    the scope of what the board trustee or employee believed in good

12-10    faith, at the time, to be the board trustee's or employee's

12-11    official capacity.  The board may not indemnify a board trustee or

12-12    employee for the amount of a loss that results from the board

12-13    trustee's or  employee's wilful and malicious misconduct or gross

12-14    negligence.  The board may establish a self-insurance fund to pay

12-15    claims for the indemnification.  The board shall provide that the

12-16    self-insurance fund must be limited to an amount not to exceed the

12-17    greater of three percent of the fund assets or $5 million.  The

12-18    self-insurance fund shall be invested in the same manner as other

12-19    assets of the fund, and all earnings and losses from investing the

12-20    self-insurance fund shall be credited to the self-insurance fund

12-21    unless that credit exceeds the limit on the self-insurance fund set

12-22    by the board or this subsection.  Amounts held in the

12-23    self-insurance fund may not be included in the actuarial valuation

12-24    for purposes of determining the municipal contribution rate or the

12-25    assets available to satisfy the actuarial liabilities of the fund

12-26    to pay service, disability, or death benefits provided by this

12-27    article.  A decision to indemnify or make a reimbursement out of

 13-1    the  self-insurance fund must be made by a majority vote of board

 13-2    trustees eligible to vote on the matter.  If the proposed

 13-3    indemnification or reimbursement is of a trustee, that trustee may

 13-4    not vote on the matter.

 13-5          Sec. 4.  SERVICE PENSION BENEFITS.  (a)  A member with at

 13-6    least 20 years of participation who terminates active service for

 13-7    any reason other than death is entitled to receive a service

 13-8    pension provided by this section.

 13-9          (b)  A member who terminates active service on or after

13-10    November 1, 1997, and who has completed at least 20 years of

13-11    participation in the fund on the effective date of termination of

13-12    service is entitled to a monthly service pension, beginning on the

13-13    effective date of termination of active service, in an amount equal

13-14    to 50 percent of the member's average monthly salary, plus three

13-15    percent of the member's average monthly salary for each year of

13-16    participation in excess of 20 years, but not in excess of 30 years

13-17    of participation, for a maximum total benefit of 80 percent of the

13-18    member's average monthly salary.

13-19          (c)  A member who terminated active service before November

13-20    1, 1997, and who had completed at least 20 years of participation

13-21    on the effective date of termination of service is entitled on

13-22    retirement to receive a monthly service pension in the amount

13-23    provided under the law in effect on the effective date of that

13-24    retirement, unless a subsequent benefit increase is expressly made

13-25    applicable to that member.

13-26          (d)  A member with a service or disability pension, other

13-27    than a deferred retiree or an active member who has elected the

 14-1    DROP under Section 5(b) of this article, who began receiving

 14-2    benefits from the fund before November 1, 1997, or a member's

 14-3    beneficiary who began receiving benefits from the fund before

 14-4    November 1, 1997, shall be paid a one-time additional benefit of

 14-5    $5,000 from the fund, payable in a lump sum as soon as

 14-6    administratively practicable after November 1, 1997.

 14-7          (e)  The total monthly benefit payable to a retired or

 14-8    disabled member, other than a deferred retiree or active member who

 14-9    has elected the DROP under Section 5(b) of this article, or each

14-10    eligible survivor of a deceased member, shall be increased by $100,

14-11    beginning with the monthly payment made for July 1999.  That

14-12    additional benefit may not be increased under Section 11(c) of this

14-13    article.

14-14          (f)  The benefit under Subsection (d) of this section shall

14-15    be paid to the member or to the eligible spouse of a deceased

14-16    member.  If the member is deceased and there is no eligible spouse,

14-17    the benefit shall be divided equally among and paid to each

14-18    eligible child of the member, or, if there is no eligible child,

14-19    the benefit shall be divided among the eligible parents of the

14-20    member.

14-21          Sec. 5.  DEFERRED RETIREMENT OPTION PLAN.  (a)  A member who

14-22    is eligible to receive a service pension under Section 4 of this

14-23    article and who remains in active service may elect to participate

14-24    in the deferred retirement option plan provided by this section.

14-25    On subsequently terminating active service, a member who elected

14-26    the DROP may apply for a monthly service pension under Section 4 of

14-27    this article, except that the effective date of the member's

 15-1    election to participate in the DROP will be considered the member's

 15-2    retirement date for determining the amount of the member's monthly

 15-3    service pension.  The member may also apply for any DROP benefit

 15-4    provided under this section on terminating active service.  Except

 15-5    as provided by Subsection (n) of this section, an election to

 15-6    participate in the DROP, once approved by the board, is

 15-7    irrevocable.

 15-8          (b)  A member may elect to participate in the DROP by

 15-9    complying with the election process established by the board.  The

15-10    member's election may be made at any time beginning on the date the

15-11    member has completed 20 years of participation in the fund and is

15-12    otherwise eligible for a service pension under Section 4 of this

15-13    article.  The election becomes effective on the first day of the

15-14    month following the month in which the board approves the member's

15-15    DROP election.  Beginning on the effective date of the member's

15-16    DROP election, amounts equal to the deductions made from the

15-17    member's salary under Section 13(c) of this article shall be

15-18    credited to the member's DROP account.  If a DROP participant

15-19    remains in active service after the fifth anniversary of the

15-20    effective date of the member's DROP election, subsequent deductions

15-21    from the member's salary under Section 13(c) of this article may

15-22    not be credited to the member's DROP account and may not otherwise

15-23    increase any benefit payable from the fund for the member's

15-24    service.

15-25          (c)  Beginning in the month a member's DROP election becomes

15-26    effective, an amount equal to the monthly service pension the

15-27    member would have received under Section 4 of this article and

 16-1    Section 11(c) of this article, if applicable, had the member

 16-2    terminated active service on the effective date of the member's

 16-3    DROP election shall be credited to a DROP account maintained for

 16-4    the member.  That monthly credit to the member's DROP account shall

 16-5    continue until the earlier of the date the member terminates active

 16-6    service or the fifth anniversary of the effective date of the

 16-7    member's DROP election.

 16-8          (d)  A member's DROP account shall be credited with earnings

 16-9    or losses at an annual rate equal to the average annual return

16-10    earned by the fund over the five years preceding, but not

16-11    including, the year during which the credit is given.  Those

16-12    earnings or losses shall be computed and credited at a time and in

16-13    a manner determined by the board, except that earnings or losses

16-14    shall be credited not less  frequently than once in each 13-month

16-15    period and shall take into account partial years of participation

16-16    in the DROP.  If the member has not terminated active service, the

16-17    member's DROP account may not be credited with earnings or losses

16-18    after the fifth anniversary of the effective date of the member's

16-19    DROP election.

16-20          (e)  A member who terminates active service after

16-21    participating in the DROP is entitled to receive, in addition to

16-22    the member's service pension under Section 4 of this article, a

16-23    benefit equal to the balance of the member's DROP account.  Unless

16-24    the member elects to receive installment or partial distributions

16-25    in accordance with Subsection (f) or (h) of this section, the

16-26    balance of a member's DROP account shall be paid to the member in a

16-27    single lump-sum payment as soon as is administratively practicable

 17-1    after the member's termination of active service.

 17-2          (f)  In lieu of a single lump-sum payment, a member may elect

 17-3    to receive the balance of the member's DROP account in three

 17-4    substantially equal installments. A member electing the installment

 17-5    form of distribution is entitled to receive the first installment

 17-6    within a reasonable period after terminating active service.  The

 17-7    second and third installments shall be paid to the member on the

 17-8    first and second anniversaries of the date of the first

 17-9    installment.  A member electing to receive the member's DROP

17-10    account balance in installments may convert that election at any

17-11    time after receipt of the first installment to an election to

17-12    receive the remainder of the member's DROP account balance in a

17-13    lump-sum payment.  If a member elects to receive installments, the

17-14    member's DROP account may not be credited with earnings or losses

17-15    occurring after the member leaves active service.  The DROP account

17-16    balance of a member who elects to receive the member's DROP account

17-17    balance in installments may not be credited with interest after the

17-18    date of payment of the first installment.

17-19          (g)  The board may adopt by a majority vote the provisions of

17-20    Subsections (h) and (i) of this section.

17-21          (h)  In lieu of a single lump-sum payment, a member may elect

17-22    to receive partial payments from the member's DROP account for each

17-23    calendar year, in an amount elected by the member.  The board may

17-24    establish procedures concerning partial payments, including

17-25    limitations on timing and frequency of those payments.  A member

17-26    who elects partial payments may, at any time, elect to receive the

17-27    member's entire remaining DROP account balance in a single lump-sum

 18-1    payment.

 18-2          (i)  If a member elects partial payments, for periods after a

 18-3    member terminates active service and before the member's DROP

 18-4    account is completely distributed, the member's DROP account shall

 18-5    be credited with earnings or losses of the fund as computed under

 18-6    Subsection (d) of this section and reduced by an administrative fee

 18-7    of one percent of the account balance each year, determined before

 18-8    adjustment for earnings or losses for the year.

 18-9          (j)  An election by a member concerning installment or

18-10    partial payments as provided by Subsections (f)-(i) of this section

18-11    must satisfy the requirements of Section 401(a)(9) of the code.

18-12    All distributions and changes in form of distribution must be made

18-13    in a manner and at a time that comply with that provision.

18-14          (k)  A member who elects to participate in the DROP is

18-15    considered to have terminated active service on the effective date

18-16    of the member's DROP election for purposes of computing and

18-17    providing service pension benefits under Section 4 of this article

18-18    and for purposes of computing and providing death benefits under

18-19    Section 7 of this article.  A salary earned or additional years of

18-20    participation completed after the member's DROP election becomes

18-21    effective may not be considered in the computation of retirement,

18-22    disability, or death benefits unless a DROP revocation is made as

18-23    prescribed by Subsection (n) of this section.

18-24          (l)  If a DROP participant dies before complete distribution

18-25    of the member's DROP account has been made, the member's DROP

18-26    account balance shall be distributed to the member's eligible

18-27    beneficiaries, determined as follows:

 19-1                (1)  if the member is survived by a person who was the

 19-2    member's spouse on the member's last day of active service and one

 19-3    or more eligible children, one-half of the member's DROP account

 19-4    balance shall be paid to that eligible spouse, and the remaining

 19-5    one-half shall be divided equally among the member's eligible

 19-6    children;

 19-7                (2)  if the member is survived by a spouse described by

 19-8    Subdivision (1) of this subsection, but not by an eligible child,

 19-9    the member's entire DROP account balance shall be paid to the

19-10    surviving spouse;

19-11                (3)  if the member is survived by one or more eligible

19-12    children, but not by a spouse described by Subdivision (1) of this

19-13    subsection, the member's DROP account balance shall be divided

19-14    equally among the eligible children;

19-15                (4)  if the member is not survived by a spouse

19-16    described by Subdivision (1) of this subsection or an eligible

19-17    child, the member's DROP account balance shall be divided equally

19-18    among the member's eligible parents;

19-19                (5)  if the member is not survived by a spouse

19-20    described by Subdivision (1) of this subsection, an eligible child,

19-21    or an eligible parent, the member's DROP account balance shall be

19-22    distributed in accordance with the member's beneficiary designation

19-23    filed with the board or, if the member has failed to file a valid

19-24    beneficiary designation, to the member's estate; and

19-25                (6)  if a member's spouse described by Subdivision (1)

19-26    of this subsection was not married to the member on the date the

19-27    member's DROP election became effective, the spouse shall receive a

 20-1    reduced benefit equal to the benefit otherwise payable to the

 20-2    surviving spouse under this subsection, multiplied by the

 20-3    percentage of the period between the member's DROP election and the

 20-4    date the member left active service during which the spouse and the

 20-5    member were married, and the amount by which the spouse's benefit

 20-6    is reduced shall be divided among any other eligible survivors as

 20-7    if the member did not have an eligible spouse.

 20-8          (m)  An eligible beneficiary's share of a deceased member's

 20-9    DROP account shall be distributed as soon as administratively

20-10    practicable after the member's death in the form of a single

20-11    lump-sum payment.  All distributions to beneficiaries under this

20-12    subsection must be made in a manner and at a time that comply with

20-13    Section 401(a)(9) of the code.

20-14          (n)  Except as otherwise provided by this subsection, a

20-15    member who participates in the DROP is ineligible for disability

20-16    benefits described by Section 6 of this article, and the member's

20-17    survivors are ineligible to receive enhanced death benefits

20-18    described by Section 7(c) of this article.  A DROP participant who

20-19    is determined under Section 6(c) of this article to be incapable of

20-20    performing any substantial gainful employment because of an on-duty

20-21    disability may retroactively revoke the member's DROP election if

20-22    the revocation occurs before the member receives a distribution

20-23    from the member's DROP account or retirement benefits.  If a DROP

20-24    participant dies in the course of the performance of the member's

20-25    duty or dies as a result of an on-duty disability described by

20-26    Section 6(c) of this article, the DROP participant's eligible

20-27    survivors under Section 7 of this article and the member's eligible

 21-1    DROP beneficiaries under Subsection (l) of this section may, by

 21-2    unanimous agreement, retroactively revoke the member's DROP

 21-3    election if the revocation occurs before receipt of a distribution

 21-4    from the member's DROP account, service pension benefits under

 21-5    Section 4 of this article, or death benefits under Section 7 of

 21-6    this article.  For purposes of this subsection, an on-duty

 21-7    disability must have occurred after the effective date of a

 21-8    member's election to participate in the DROP.  If a DROP election

 21-9    revocation is made as prescribed by this subsection, the member's

21-10    DROP account is not distributed, and the member or the member's

21-11    beneficiary, as applicable, is entitled to benefits under this

21-12    article as if a DROP election had not been made.

21-13          (o)  A retired member who previously participated in the DROP

21-14    and who returns to active service is subject to the terms of this

21-15    section in effect at the time of the member's return to active

21-16    service.

21-17          (p)  After August 31, 2000, the board may set a date after

21-18    which additional members will not be allowed to elect to

21-19    participate in the DROP.  A member whose election to participate in

21-20    the DROP becomes effective before a deadline established by the

21-21    board is entitled to continue participating in the DROP.

21-22          Sec. 6.  DISABILITY PENSION BENEFITS.  (a)  If the board

21-23    determines that a member has suffered an on-duty disability, the

21-24    member is entitled to an on-duty disability pension as provided by

21-25    this section in lieu of any other benefit under this article.

21-26          (b)  If the board determines that a member is not capable of

21-27    performing the usual and customary duties of the member's

 22-1    classification or position because of the member's on-duty

 22-2    disability, the member is entitled to receive a monthly disability

 22-3    pension, beginning on the effective date of the member's

 22-4    termination of active service, in an amount equal to the greater

 22-5    of:

 22-6                (1)  50 percent of the member's average monthly salary;

 22-7    or

 22-8                (2)  the service pension the member would have been

 22-9    entitled to receive under Section 4 of this article based on years

22-10    of participation as of the effective date of the member's

22-11    termination of active service.

22-12          (c)  If the board determines that a member is not capable of

22-13    performing any substantial gainful activity because of the member's

22-14    on-duty disability, the member is entitled to receive a monthly

22-15    disability pension, beginning on the effective date of the member's

22-16    termination of active service, in an amount equal to the greater

22-17    of:

22-18                (1)  75 percent of the member's average monthly salary;

22-19    or

22-20                (2)  the service pension the member would have been

22-21    entitled to receive under Section 4 of this article based on years

22-22    of participation on the effective date of the member's termination

22-23    of active service.

22-24          (d)  If a full-time active member with at least six years of

22-25    service becomes disabled or dies from heart or lung disease or

22-26    cancer, and the member successfully passed a physical examination

22-27    before the claimed disability or death or on beginning employment

 23-1    as a firefighter, and the examination failed to reveal any evidence

 23-2    of the heart or lung disease  or cancer, that condition will be

 23-3    presumed to have caused an on-duty disability for purposes of

 23-4    determining eligibility for disability benefits under this section,

 23-5    and the amount of the disability benefit constitutes the pension

 23-6    amount that shall be used to determine the death benefit payable

 23-7    with respect to that member.  Another statutory presumption

 23-8    regarding the cause of illnesses or conditions does not affect any

 23-9    benefit payable under this article.

23-10          (e)  If the board determines that a member is not capable of

23-11    performing the usual and customary duties of the member's

23-12    classification or position because of the member's off-duty

23-13    disability, the member is entitled to an off-duty disability

23-14    pension in lieu of any other benefit under this article.  If the

23-15    board makes that determination, the member is entitled to receive a

23-16    monthly disability pension, beginning on the effective date of the

23-17    member's termination of active service, in an amount equal to the

23-18    greater of:

23-19                (1)  25 percent of the member's average monthly salary,

23-20    plus 2-1/2 percent of the member's average monthly salary for each

23-21    full year of participation in the fund, except that the total

23-22    monthly disability pension under this subdivision may not exceed 50

23-23    percent of the member's average monthly salary; or

23-24                (2)  the service pension the member would have been

23-25    entitled to receive under Section 4 of this article based on years

23-26    of participation on the effective date of the member's termination

23-27    of active service.

 24-1          (f)  A member is not eligible for an on-duty or off-duty

 24-2    disability pension as provided by this section if the member's

 24-3    on-duty or off-duty disability is a direct and proximate result of

 24-4    a condition that existed on the date the member began membership in

 24-5    the fund.  In that event, if the member is not eligible to receive

 24-6    a service pension under Section 4 of this article, the member may

 24-7    elect any deferred pension or refund of contributions for which the

 24-8    member is eligible under Section 8 of this article.  A member has a

 24-9    preexisting condition under this subsection if the board determines

24-10    that the member had:

24-11                (1)  symptoms that would cause an ordinarily prudent

24-12    person to seek diagnosis, care, or treatment during the five-year

24-13    period before the effective date of the member's membership in the

24-14    fund; or

24-15                (2)  a condition for which medical advice or treatment

24-16    was recommended by or received from a physician during the

24-17    five-year period before the effective date of the member's

24-18    membership in the fund.

24-19          (g)  A person may not receive an on-duty or off-duty

24-20    disability pension from the fund unless the person or the person's

24-21    legal representative files with the board an application for

24-22    disability benefits, in the form approved by the board, and

24-23    certificates of the member's disability signed and sworn to by the

24-24    member and the member's physician or by a physician selected by the

24-25    board.  The board may require other or additional evidence of

24-26    disability before authorizing payment of disability pension

24-27    benefits.

 25-1          (h)  The board shall make all determinations concerning

 25-2    benefits under this section in accordance with uniform principles

 25-3    consistently applied on the basis of medical or other evidence that

 25-4    the board determines is necessary or desirable.

 25-5          Sec. 7.  DEATH BENEFITS.  (a)  If a member dies who is

 25-6    eligible to receive a service pension under Section 4 of this

 25-7    article, a disability pension under Section 6 of this article, or a

 25-8    deferred pension under Section 8(a) of this article, or who is

 25-9    receiving those benefits, the member's eligible survivors are

25-10    entitled to death benefits as follows:

25-11                (1)  if the member is survived by both an eligible

25-12    spouse and one or more eligible children, the eligible spouse is

25-13    entitled to receive a monthly death benefit equal to one-half of

25-14    the amount the member would have been entitled to receive, and the

25-15    surviving eligible children are entitled to receive a monthly death

25-16    benefit equal to the remainder of the amount the member would have

25-17    been entitled to receive, divided equally among the eligible

25-18    children;

25-19                (2)  if the member is not survived by an eligible

25-20    child, or if at any time after the death of the member an eligible

25-21    child is not entitled to a benefit, the monthly death benefit to be

25-22    paid the eligible spouse is equal to the full amount the member

25-23    would have been entitled to receive;

25-24                (3)  if the member is not survived by an eligible

25-25    spouse, or if the member's eligible spouse dies after being

25-26    entitled to a death benefit under this section, the surviving

25-27    eligible children are entitled to receive a monthly death benefit

 26-1    equal to the full monthly pension benefit the member would have

 26-2    been entitled to receive, divided equally among the member's

 26-3    eligible children then living; and

 26-4                (4)  if the member is not survived by an eligible

 26-5    spouse or an eligible child, a monthly death benefit equal to the

 26-6    full monthly pension benefit the member would have been entitled to

 26-7    receive shall be divided among the eligible parents of the deceased

 26-8    member.

 26-9          (b)  If a member's eligible spouse was married to the member

26-10    for less than five years and was not married to the member at the

26-11    time the member left active service, the eligible spouse shall be

26-12    paid a reduced benefit equal to the benefit otherwise payable to

26-13    the eligible spouse under this section, multiplied by the time the

26-14    eligible spouse was married to the member, and divided by five

26-15    years.  The amount by which the eligible spouse's benefit is

26-16    reduced shall be divided among any other eligible survivors as if

26-17    the member did not have an eligible spouse.

26-18          (c)  Notwithstanding any other provision of this section, if

26-19    a member dies in the course of the performance of the member's

26-20    duties as a firefighter or suffers an on-duty disability and dies

26-21    as a result of the bodily injuries that caused the on-duty

26-22    disability, death benefits based on the member's service shall be

26-23    computed on the basis of a benefit equal to 100 percent of the

26-24    deceased member's average monthly salary.

26-25          (d)  If a member dies after benefit payments have begun or at

26-26    a time the member could have terminated active service and elected

26-27    to receive a service pension or deferred pension immediately, the

 27-1    death benefits payable under this section shall begin or continue

 27-2    effective as of the member's date of death.  If a member who is not

 27-3    entitled to receive any monthly pension benefit under this article

 27-4    other than a deferred pension under Section 8(a) of this article

 27-5    dies before age 50, any monthly death benefits payable under this

 27-6    section shall begin on the date the deceased member would have

 27-7    reached age 50.

 27-8          (e)  In addition to the monthly death benefit provided under

 27-9    Subsection (a) of this section, if an active member or a member

27-10    receiving a service pension under Section 4 of this article or a

27-11    disability pension under Section 6 of this article dies on or after

27-12    July 1, 1998, the member's eligible survivors are entitled to a

27-13    one-time $5,000 death benefit, payable as a lump sum as follows:

27-14                (1)  if the member is survived by an eligible spouse,

27-15    the eligible spouse is entitled to receive $5,000;

27-16                (2)  if the member is not survived by an eligible

27-17    spouse, the member's eligible children are entitled to receive

27-18    $5,000, divided equally among those children; or

27-19                (3)  if the member is not survived by an eligible

27-20    spouse or an eligible child, the $5,000 death benefit shall be

27-21    divided equally among the parents of the deceased member.

27-22          (f)  A member in active service who dies, for purposes of

27-23    Subsection (a) of this section, shall be treated as having become

27-24    disabled because of the member's cause of death on the date of the

27-25    member's death.

27-26          (g)  If a member in active service dies and does not leave an

27-27    eligible survivor, or the eligible survivors unanimously elect such

 28-1    a benefit in lieu of any other death benefit, a lump-sum benefit

 28-2    shall be paid in an amount equal to the refund, if any, to which

 28-3    the member would have been entitled under Section 8 of this article

 28-4    had the member terminated service on the date of the member's

 28-5    death.  That lump-sum benefit shall be paid to the eligible

 28-6    survivors as provided by Subsection (a) of this section or, if

 28-7    there are not any eligible survivors, to the member's designated

 28-8    beneficiary.  A member's beneficiary must be designated before the

 28-9    member's death on a form approved by the board.  If more than one

28-10    beneficiary is designated, the benefit shall be divided equally

28-11    among the beneficiaries unless a different allocation is provided

28-12    in the designation.  If a member fails to properly designate a

28-13    beneficiary, the benefit provided by this subsection shall be

28-14    payable to the member's estate on application by the estate.  Money

28-15    payable under this subsection may not escheat to the state.

28-16          (h)  Death benefits are not payable under this article,

28-17    including benefits to any survivor, based on a member's service if

28-18    the board determines that the member's death resulted from suicide

28-19    or attempted suicide that occurred before the member completed two

28-20    years of participation or that the member's death resulted from a

28-21    disability arising out of an attempted suicide that occurred before

28-22    the member completed two years of participation.

28-23          (i)  A benefit payable under this section to a member's

28-24    eligible child ceases when the child ceases to be an eligible

28-25    child.

28-26          (j)  An eligible spouse is entitled to receive or continue to

28-27    receive survivor benefits on remarriage, except that a person who

 29-1    is an eligible spouse of more than one member is entitled to

 29-2    receive survivor benefits as the eligible spouse of only the member

 29-3    whose survivor benefits provide the highest benefit to that

 29-4    eligible spouse.

 29-5          Sec. 8.  DEFERRED PENSION AT AGE 50; REFUND OF CONTRIBUTIONS.

 29-6    (a)  A member who terminates active service for any reason other

 29-7    than death with at least 10 years of participation, but less than

 29-8    20 years of participation, is entitled to a monthly deferred

 29-9    pension benefit, beginning at age 50, in an amount equal to 1.7

29-10    percent of the member's average monthly salary multiplied by the

29-11    amount of the member's years of participation.

29-12          (b)  In lieu of the deferred pension benefit provided under

29-13    Subsection (a) of this section, a member who terminates active

29-14    service for any reason other than death with at least 10 years of

29-15    participation, but less than 20 years of participation, may elect

29-16    to receive a lump-sum refund of the member's contributions to the

29-17    fund with interest computed at five percent, not compounded.  A

29-18    member's election to receive a refund of contributions must be made

29-19    on a form approved by the board.  The member's refund shall be paid

29-20    as soon as administratively practicable after the member's election

29-21    is received.

29-22          (c)  A member who terminates employment for any reason other

29-23    than death before the member has completed 10 years of

29-24    participation is entitled only to a refund of the member's

29-25    contributions without interest and is not entitled to a deferred

29-26    pension benefit under this section or to any other benefit under

29-27    this article.  The member's refund shall be paid as soon as

 30-1    administratively practicable after the effective date of the

 30-2    member's termination of active service.

 30-3          Sec. 9.  PROOF OF CONTINUED DISABILITY.  (a)  The board may

 30-4    at any time require a person receiving a disability pension or

 30-5    receiving death benefits as a disabled child under this article to

 30-6    undergo a medical examination by a physician appointed or selected

 30-7    by the board for that purpose.

 30-8          (b)  A person retired for disability under Section 6(c) of

 30-9    this article or a person receiving death benefits as a disabled

30-10    child under Section 7 of this article must file an annual report of

30-11    employment activities and earnings with the board.  The board shall

30-12    establish the form of the report and the time for filing the

30-13    report.

30-14          (c)  The result of the examination, the report by the

30-15    physician, and the report of employment activities and earnings

30-16    shall be considered by the board in determining whether the relief

30-17    in the case shall be continued, increased if less than the maximum

30-18    provided, decreased, or discontinued.  The board may reduce or

30-19    entirely discontinue all benefits to a person receiving benefits

30-20    under this article who, after notice from the board, fails to

30-21    appear for a required medical examination or fails to file the

30-22    report of employment activities and earnings.

30-23          Sec. 10.  NONSTATUTORY BENEFIT INCREASES.  The benefits

30-24    provided by this article may be increased if:

30-25                (1)  the increase is first approved by an actuary

30-26    selected by the board who, if an individual, is a Fellow of the

30-27    Society of Actuaries, a Fellow of the Conference of Actuaries in

 31-1    Public Practice, or a member of the American Academy of Actuaries;

 31-2                (2)  a majority of the participating members of the

 31-3    fund vote for the increase by a secret ballot;

 31-4                (3)  the increase does not deprive a member, without

 31-5    the member's written consent, of a right to receive benefits that

 31-6    have already become fully vested and matured in a member; and

 31-7                (4)  the State Pension Review Board approves the

 31-8    increase, which approval may not be unreasonably withheld.

 31-9          Sec. 11.  GENERAL PROVISIONS FOR CALCULATION AND PAYMENT OF

31-10    BENEFITS.  (a)  A member, eligible survivor, or beneficiary of a

31-11    member is not entitled to receive payments from a fund under more

31-12    than one section of this article in a particular capacity.

31-13    However, a person may be entitled to benefits both as a member and

31-14    as a survivor or beneficiary of another member.

31-15          (b)  After a member terminates active service, the amounts of

31-16    all benefits that the member or the member's beneficiaries may

31-17    become entitled to receive from the fund shall be computed on the

31-18    basis of the schedule of benefits in effect for the fund on the

31-19    effective date of the termination of the member's active service,

31-20    without adjustment for any subsequent increases of benefits unless

31-21    those increases are expressly made applicable to previously retired

31-22    members or their beneficiaries.

31-23          (c)  The benefits, including survivor benefits, payable based

31-24    on the service of a member who completed 30 or more years of

31-25    participation, is or would have been at least 50 years old, or

31-26    received or is receiving an on-duty disability pension under

31-27    Section 6(c) of this article shall be increased by three percent in

 32-1    October of each year and, if the benefit had not previously been

 32-2    subject to that adjustment, in the month of the member's 50th

 32-3    birthday.

 32-4          (d)  In computing a member's years of participation, time

 32-5    served in the armed forces of the nation during war or national

 32-6    emergency is considered continuous service.  Except for that

 32-7    military service, credit for prior service shall be given only if a

 32-8    member returns to active service as a firefighter before the fifth

 32-9    anniversary of a previous effective date of termination.

32-10          (e)  A retired firefighter may be recalled to duty by the

32-11    chief of the fire department in case of great conflagration and

32-12    shall perform those duties the chief directs but does not have a

32-13    claim against a municipality or the fund of that municipality for

32-14    payment for the duty performed.

32-15          (f)  A member, eligible survivor, or beneficiary who is

32-16    entitled to receive a benefit payment under this article is

32-17    entitled to receive the benefit beginning on the date the member

32-18    ceases to carry out the member's regular duties as a firefighter,

32-19    notwithstanding the fact that the member may remain on the payroll

32-20    of the member's fire department or receive sick leave, vacation, or

32-21    other pay after the effective date of termination of the member's

32-22    regular duties as a firefighter.  If there is a delay in beginning

32-23    payment of benefits resulting from the requirements of Section 6(g)

32-24    of this article for disability pensions, the member or beneficiary

32-25    shall, when the disability pension is approved by the board, be

32-26    paid the full amount of the disability pension that has accrued

32-27    since the effective date of termination of the member's regular

 33-1    duties as a firefighter.

 33-2          (g)  A member may designate a trustee to receive the benefit

 33-3    payable to any eligible survivor or beneficiary other than the

 33-4    member's eligible spouse or a spouse eligible to receive a benefit

 33-5    under the DROP.  Any such designation must be made on a form

 33-6    approved by the board.

 33-7          (h)  A benefit payable under this article to a minor may be

 33-8    made only to the guardian of the estate of the minor.  If a benefit

 33-9    becomes payable to any other person under a legal disability,

33-10    payment of that benefit may be made only to the conservator or the

33-11    guardian of that person's estate appointed by a court of competent

33-12    jurisdiction.  A payment made in accordance with this section on

33-13    behalf of a minor or other person under a legal disability fully

33-14    discharges the fund's obligation to that person.

33-15          (i)  Notwithstanding any other provision of this article, a

33-16    person entitled to receive benefit payments from the fund may:

33-17                (1)  make a one-time election to receive a smaller

33-18    pension or survivor benefit than is otherwise provided under this

33-19    article;

33-20                (2)  make a one-time election not to receive any future

33-21    annual increases in the pension or survivor benefits received by

33-22    the person or the person's beneficiary; or

33-23                (3)  make a one-time election not to receive a specific

33-24    benefit enhancement.

33-25          (j)  An election under Subsection (i) of this section must be

33-26    made in writing and submitted to the board for approval.  On the

33-27    date the board grants approval of an election under Subsection (i)

 34-1    of this section, the election becomes irrevocable.

 34-2          (k)  A benefit under this article may not be integrated with

 34-3    benefits payable under the federal Social Security Act.  In a

 34-4    municipality in which firefighters are eligible to enroll for or

 34-5    receive retirement benefits under the Social Security Act, benefits

 34-6    that may be available to a member under the Social Security Act may

 34-7    not be taken into account in determining the amount of benefits a

 34-8    member may receive under this article.

 34-9          (l)  If the board determines that the amount in the fund is

34-10    insufficient to pay in full any pension or disability benefits, all

34-11    pension and disability benefits made after the date of the

34-12    determination shall be reduced pro rata for the period the

34-13    insufficiency exists.

34-14          (m)  A benefit payable under this article because of the

34-15    death of a member or eligible beneficiary may not be paid to a

34-16    person convicted of causing that death but instead shall be paid as

34-17    if the convicted person predeceased the deceased member or

34-18    beneficiary.  If no beneficiary is entitled to the benefit as a

34-19    result, the benefit shall be paid to the decedent's estate.  Except

34-20    as otherwise permitted by this subsection with respect to

34-21    suspension of benefits, the board is not required to withhold

34-22    payment to a person convicted of causing the death of a member or

34-23    eligible beneficiary until the board receives actual notice of the

34-24    conviction of that person.  The board may suspend payment of a

34-25    benefit payable on the death of a member or an eligible beneficiary

34-26    on the indictment of the person who would otherwise be entitled to

34-27    the benefit, and the suspension remains in effect until the board

 35-1    determines that a final disposition of the charges relating to the

 35-2    cause of death has occurred.  If a benefit payment is suspended

 35-3    under this subsection and the person is not convicted, the benefit

 35-4    again becomes payable with interest computed at the rate earned by

 35-5    the fund during the time the benefit payment was suspended.  For

 35-6    purposes of this subsection, a person has been convicted of causing

 35-7    the death of a member or eligible beneficiary if:

 35-8                (1)  the person has pleaded guilty or nolo contendere

 35-9    to, or the person has been found guilty by a court of, an offense

35-10    at the trial of which it is established that the person's

35-11    intentional or knowing act or omission caused the death of the

35-12    member or eligible beneficiary, regardless of whether sentence is

35-13    imposed or probated; and

35-14                (2)  an appeal of the conviction is not pending, and

35-15    the time provided for appeal has expired.

35-16          Sec. 12.  APPEALS OF BENEFIT DECISIONS.  (a)  A member who is

35-17    eligible for retirement for length of service or disability or who

35-18    has a claim for temporary disability, or any of the member's

35-19    beneficiaries, who is aggrieved by a decision or order of the

35-20    board, whether on the basis of rejection of a claim or of the

35-21    amount allowed, may appeal from the decision or order of the board

35-22    to a district court in the county in which the board is located by

35-23    giving written notice of the intention to appeal.  The notice must

35-24    contain a statement of the intention to appeal, together with a

35-25    brief statement of the grounds and reasons the party feels

35-26    aggrieved.  The notice must be served personally on the chair,

35-27    secretary, or treasurer of the board not later than the 20th day

 36-1    after the date of the order or decision.  After service of the

 36-2    notice, the party appealing shall file with the district court a

 36-3    copy of the notice of intention to appeal, together with the

 36-4    affidavit of the party making service showing how, when, and on

 36-5    whom the notice was served.

 36-6          (b)  Not later than the 30th day after the date of service of

 36-7    the notice of intention to appeal on the board, the secretary or

 36-8    treasurer of the board shall file with the district court a

 36-9    transcript of all papers and proceedings in the case before the

36-10    board.  When the copy of the notice of intention to appeal and the

36-11    transcript have been filed with the court, the appeal is considered

36-12    perfected, and the court shall docket the appeal, assign the appeal

36-13    a number, fix a date for hearing the appeal, and notify both the

36-14    appellant and the board of the date fixed for the hearing.

36-15          (c)  At any time before issuing a decision on the appeal, the

36-16    court may require further or additional proof or information,

36-17    either documentary or under oath.  On issuing a decision on the

36-18    appeal, the court shall give to each party to the appeal a copy of

36-19    the decision and shall direct the board as to the disposition of

36-20    the case.  The final decision or order of the district court is

36-21    appealable in the same manner as are civil cases generally.

36-22          Sec. 13.  MEMBERSHIP AND CONTRIBUTIONS.  (a)  Each person who

36-23    becomes a firefighter before age 36 becomes a member of the fund if

36-24    the person's application for membership is accepted by the board.

36-25    In accepting employment as a firefighter, and on becoming a member

36-26    of the fund, a firefighter agrees to make contributions required

36-27    under this article of members of the fund who are in active service

 37-1    and is entitled to participate in the benefits of membership in the

 37-2    fund as provided by this article.

 37-3          (b)  The board shall establish minimum physical requirements

 37-4    for membership in the fund that may not exceed the physical

 37-5    requirements established by the Fire Fighters' and Police Officers'

 37-6    Civil Service Commission under Section 143.022, Local Government

 37-7    Code, and that must be the same for all applicants.  At the time

 37-8    that physical examinations are administered on behalf of the

 37-9    municipality, each applicant must be provided written notice that a

37-10    copy of the results of the examination will be forwarded to the

37-11    board to determine eligibility for membership in the fund and the

37-12    existence of any preexisting condition.  Not later than the 10th

37-13    day after the date of a physical examination performed on an

37-14    applicant for a beginning position in the fire department as

37-15    required by Section 143.022, Local Government Code, the

37-16    municipality shall provide to the board a copy of all documents

37-17    resulting from the physical examination.  The board may require

37-18    additional physical examinations if necessary to determine whether

37-19    the applicant meets the minimum physical requirements for

37-20    membership in the fund.  The fund shall pay the cost of any

37-21    additional physical examination the board requires.  Within a

37-22    reasonable time after receiving the examination reports of an

37-23    applicant, the board shall, on the basis of one or more physical

37-24    examinations, determine whether the applicant meets the minimum

37-25    physical requirements for membership in the fund.  The board shall

37-26    notify the applicant and the chief of the fire department not later

37-27    than the 10th calendar day after the date of the board's decision

 38-1    on the applicant's satisfaction of the minimum physical

 38-2    requirements.  If the board rejects the applicant, the applicant

 38-3    may request further examination by a board of three physicians

 38-4    appointed by the board at the expense of the applicant.  If a

 38-5    physician board finds that an applicant meets the minimum physical

 38-6    requirements for membership in the fund, the board shall accept the

 38-7    applicant for membership.  If accepted by the board, the

 38-8    applicant's membership in the fund is effective on being appointed

 38-9    to the position of probationary firefighter.

38-10          (c)  Each member in active service shall make contributions

38-11    to the fund in an amount equal to 7.7 percent of the member's

38-12    salary at the time of the contribution.  The governing body of the

38-13    municipality shall deduct the contributions from the member's

38-14    salary and shall forward the contributions to the fund as soon as

38-15    practicable.

38-16          (d)  The municipality shall make monthly contributions to the

38-17    fund in an amount equal to the product of the contribution rate

38-18    certified by the board and the aggregate salaries paid to members

38-19    of the fund during the month for which the contribution is made.

38-20    The board shall certify the municipality's contribution rate for

38-21    each year or portion of a year based on the results of actuarial

38-22    valuations made at least every three years.  The municipality's

38-23    contribution rate shall be composed of the normal cost plus the

38-24    level percentage of salary payment required to amortize the

38-25    unfunded actuarial liability over a period of 40 years beginning on

38-26    January 1, 1983, computed on the basis of an acceptable actuarial

38-27    reserve funding method approved by the board.  Notwithstanding any

 39-1    other provision of this article, the contributions by the

 39-2    municipality, when added to any contributions with respect to a

 39-3    qualified governmental excess benefit arrangement maintained in

 39-4    accordance with Section 14(c) of this article, may not be less than

 39-5    twice the amount paid into the fund by contributions of the

 39-6    members.

 39-7          (e)  Notwithstanding Subsection (d) of this section, if one

 39-8    or more members of the fund are appointed to positions in the fire

 39-9    department, and those appointments are not made based on the

39-10    results of a competitive examination, the minimum contribution rate

39-11    required of the municipality for any year is increased by an amount

39-12    equal to the difference, if any, between:

39-13                (1)  the municipality's actuarially determined

39-14    contribution rate computed in accordance with Subsection (d) of

39-15    this section, without regard to the minimum contribution rate

39-16    specified, computed based on the actual monthly salary or

39-17    compensation for all members; and

39-18                (2)  the municipality's actuarially determined

39-19    contribution rate computed in accordance with Subsection (d) of

39-20    this section, without regard to the minimum contribution rate

39-21    specified, but for each member so appointed, computed based, for

39-22    all months of participation after the date of appointment, on the

39-23    monthly salary or compensation being paid to the person who holds

39-24    the position the member held immediately before the member was

39-25    appointed to the new position.

39-26          (f)  Money deducted from salaries or compensation as provided

39-27    by this section and the payments and contributions provided by this

 40-1    section become a part of the fund of the municipality in which the

 40-2    contributing member serves at the time of the contribution.  In

 40-3    accordance with Section 14(c) of this article, contributions under

 40-4    any qualified governmental excess benefit arrangement do not become

 40-5    part of the trust fund assets of the fund.

 40-6          (g)  On action of its governing body, a municipality may pick

 40-7    up members' contributions prescribed under Subsection (c) of this

 40-8    section for purposes of Section 414(h)(2) of the code.  A member's

 40-9    salary is affected by  this subsection only as this subsection

40-10    relates to the computation of pension contributions and gross pay

40-11    for federal tax purposes.  The computation of pension benefits,

40-12    severance pay, and other benefits is not affected.

40-13          (h)  If the municipality's actuarially determined

40-14    contribution rate computed in accordance with Subsection (d) of

40-15    this section would exceed the minimum contribution rate specified,

40-16    the benefits payable under Sections 4(d), 4(e), and 7(e) of this

40-17    article may not be paid, an eligible spouse whose benefit is

40-18    reduced under Section 7(b) of this article may not be paid a

40-19    benefit if there are no other eligible survivors, and the

40-20    municipality's actuarially determined contribution rate shall be

40-21    recomputed on the basis of the assumption that those benefits are

40-22    suspended indefinitely.  If the  recomputation results in an

40-23    actuarially determined contribution rate less than the minimum

40-24    contribution rate specified, a portion of the benefits shall be

40-25    paid, as determined by the board, to the extent that, with the

40-26    payments determined, the two contribution rates are equal.  This

40-27    subsection expires July 31, 1999, unless on that date the

 41-1    municipality's actuarially determined contribution rate computed in

 41-2    accordance with Subsection (d) of this section  would exceed the

 41-3    minimum contribution rate specified.

 41-4          Sec. 14.  INTERNAL REVENUE CODE LIMITATIONS.  (a)

 41-5    Notwithstanding any other provision of this article, a member may

 41-6    not accrue a benefit or allowance under this article in excess of

 41-7    an amount that, when added to all other pension benefits received

 41-8    under plans of the municipality that are qualified under Section

 41-9    401 of the code, results in an annual benefit in excess of the

41-10    applicable limits provided by Section 415 of the code.  That

41-11    accrual limitation applies only as long as satisfaction of Section

41-12    415 of the code is necessary to maintain the tax-qualified status

41-13    of the fund under Section 401 of the code.  Any benefit accruals

41-14    limited under this subsection must be certified by a qualified

41-15    actuary selected by the board.

41-16          (b)  Notwithstanding any other provision of this article, the

41-17    fund shall be administered in a manner that complies with the code,

41-18    United States Treasury Department regulations, and Internal Revenue

41-19    Service rulings and notices applicable to public retirement

41-20    systems.  The board shall adopt rules and amend or repeal

41-21    conflicting rules to ensure compliance with this subsection.

41-22          (c)  The board may establish and maintain a qualified

41-23    governmental excess benefit arrangement, in accordance with Section

41-24    415(m) of the code, solely for the purpose of providing to members

41-25    the amount of each member's pension benefit otherwise payable under

41-26    the fund that exceeds the limitations on benefits imposed by

41-27    Section 415 of the code.  The board may maintain a separate trust

 42-1    solely for providing benefits under the arrangement or may maintain

 42-2    the arrangement on an unfunded basis through municipal

 42-3    contributions as benefits become payable.   Benefits provided by

 42-4    that arrangement may not be paid from the trust fund assets that

 42-5    are available for payment of any other benefit under this article.

 42-6    Benefits under any qualified governmental excess benefit

 42-7    arrangement shall be paid or funded entirely through municipal

 42-8    contributions in an amount approved by the board.  An election may

 42-9    not be provided at any time to a member, directly or indirectly, to

42-10    defer compensation under the arrangement.  The operation and

42-11    administration of any qualified governmental excess benefit

42-12    arrangement is the responsibility of the board, which has the same

42-13    powers concerning the arrangement as are provided to the board

42-14    under this article concerning the fund.

42-15          Sec. 15.  EXEMPTION OF BENEFITS FROM JUDICIAL PROCESS.  The

42-16    fund may not, either before or after its order of disbursement by

42-17    the board to a member, a spouse eligible to receive a benefit under

42-18    the DROP, an eligible spouse, the guardian of an eligible child, or

42-19    an eligible parent, be held, seized, subjected to, or levied on by

42-20    virtue of any execution, attachment, garnishment, injunction, or

42-21    other writ, order, or decree, or any process issued out of, or by,

42-22    any court for the payment or satisfaction of any debt, damage,

42-23    claim, demand, or judgment against a member, a spouse eligible to

42-24    receive a benefit under the DROP, an eligible spouse, the guardian

42-25    of an eligible child, or an eligible parent.  The fund or any claim

42-26    against the fund may not be directly or indirectly assigned or

42-27    transferred, and any attempt to assign or transfer the fund or a

 43-1    claim is void.  The fund shall be sacredly held, kept, and

 43-2    disbursed only for the purposes provided by this article.

 43-3          Sec. 16.  SERVICE CREDIT FOR MEMBERS PREVIOUSLY MEMBERS OF

 43-4    SIMILAR FUNDS.  (a)  A person who becomes a firefighter in a

 43-5    municipality to which this article applies may receive service

 43-6    credit for prior employment with the fully paid fire department of

 43-7    another municipality in this state with a similar fund benefiting

 43-8    only firefighters of that municipality to which the firefighter

 43-9    contributed if:

43-10                (1)  the firefighter is under 36 years of age at the

43-11    time of applying to the fund;

43-12                (2)  the firefighter passes a physical examination

43-13    taken at the firefighter's expense and performed by a physician

43-14    selected by the board;

43-15                (3)  the firefighter pays into the fund an amount equal

43-16    to the total contribution the firefighter would have made had the

43-17    firefighter been employed by the municipality, at the

43-18    municipality's pay scale, instead of the municipality by which the

43-19    firefighter was previously employed, plus six percent interest,

43-20    compounded annually;

43-21                (4)  the firefighter applies for that credit not later

43-22    than the 60th day after the date on which membership begins; and

43-23                (5)  the firefighter has moved directly into employment

43-24    at the fire department from the fire department for which the prior

43-25    service credit is sought, without any intervening employment or

43-26    extended interruption.

43-27          (b)  A member may receive credit for prior service in more

 44-1    than one fire department under Subsection (a) of this section only

 44-2    if there have not been interruptions in employment and each

 44-3    preceding service meets the other requirements of Subsection (a) of

 44-4    this section.

 44-5          (c)  The municipality to which the member has transferred

 44-6    shall pay an amount equal to the amount it would have paid had the

 44-7    member been employed by that municipality instead of the

 44-8    municipality by which the firefighter was previously employed,

 44-9    based on the municipality's pay scale, plus six percent interest,

44-10    compounded annually.  Both the municipality's contribution and the

44-11    member's contribution must be paid promptly on approval of the

44-12    member's application for service credit.

44-13          (d)  A firefighter may not participate under this section in

44-14    the fund of the municipality to which the firefighter has

44-15    transferred until the firefighter has fully complied with this

44-16    article and the municipality  has complied with Subsection (c) of

44-17    this section.

44-18          (e)  A firefighter eligible for prior service credit may

44-19    participate in the fund, subject to the other requirements of this

44-20    article, without obtaining that credit, and if the firefighter does

44-21    not comply with the provisions and time limits of this section, the

44-22    firefighter is ineligible for the credit.

44-23          Sec. 17.  CONFIDENTIALITY OF INFORMATION ABOUT MEMBERS OR

44-24    BENEFICIARIES.  (a)  Information contained in records that are in

44-25    the custody of a fund established under this article concerning an

44-26    individual member, retiree, or beneficiary is confidential under

44-27    Chapter 552, Government Code, and may not be disclosed in a form

 45-1    identifiable with a specific individual unless:

 45-2                (1)  the information is disclosed to:

 45-3                      (A)  the individual;

 45-4                      (B)  the individual's attorney, guardian,

 45-5    executor, administrator, or conservator, or other person who the

 45-6    board determines is acting in the interest of the individual or the

 45-7    individual's estate;

 45-8                      (C)  a spouse or former spouse of the individual

 45-9    if the board determines that the information is relevant to the

45-10    spouse's or former spouse's interest in member accounts, benefits,

45-11    or other amounts payable by the fund; or

45-12                      (D)  a person with written authorization from the

45-13    individual to receive the information; or

45-14                (2)  the information is disclosed under an

45-15    authorization of the board that specifies the reason for the

45-16    disclosure.

45-17          (b)  This section does not prevent the disclosure of the

45-18    status or identity of an individual as a member, former member,

45-19    retiree, deceased member, or beneficiary of the fund.

45-20          (c)  A determination and disclosure under Subsection (a)(2)

45-21    of this section may be made without notice to the individual

45-22    member, retiree, or beneficiary.

45-23          SECTION 2.  (a)  Article 6243e.2(1), Revised Statutes, as

45-24    added by this Act, restates and amends Chapter 432, Acts of the

45-25    64th Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil

45-26    Statutes), as that law existed before repeal by this Act, and

45-27    continues in effect each firemen's relief and retirement fund

 46-1    established under that law.

 46-2          (b)  Notwithstanding Article 6243e.2(1), Revised Statutes, as

 46-3    added by this Act, a member of the board of trustees of a

 46-4    firefighters' relief and retirement fund in a municipality to which

 46-5    that article applies serving on October 31, 1997, continues to

 46-6    serve until the expiration of the term for which the member was

 46-7    elected or appointed under Chapter 432, Acts of the 64th

 46-8    Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil Statutes),

 46-9    as that law existed before repeal by this Act, and that law is

46-10    continued in effect for that purpose.

46-11          SECTION 3.  Chapter 432, Acts of the 64th Legislature, 1975

46-12    (Article 6243e.2, Vernon's Texas Civil Statutes), is repealed.

46-13          SECTION 4.  This Act takes effect November 1, 1997.

46-14          SECTION 5.  The importance of this legislation and the

46-15    crowded condition of the calendars in both houses create an

46-16    emergency and an imperative public necessity that the

46-17    constitutional rule requiring bills to be read on three several

46-18    days in each house be suspended, and this rule is hereby suspended.

         _______________________________     _______________________________

             President of the Senate              Speaker of the House

               I certify that H.B. No. 3170 was passed by the House on April

         30, 1997, by a non-record vote; and that the House concurred in

         Senate amendments to H.B. No. 3170 on May 21, 1997, by a non-record

         vote.

                                             _______________________________

                                                 Chief Clerk of the House

               I certify that H.B. No. 3170 was passed by the Senate, with

         amendments, on May 19, 1997, by the following vote:  Yeas 31, Nays

         0.

                                             _______________________________

                                                 Secretary of the Senate

         APPROVED:  _____________________

                            Date

                    _____________________

                          Governor