By Yarbrough                                    H.B. No. 3170

      75R6463 CAS-D                           

                                A BILL TO BE ENTITLED

 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 city sponsoring the fund that most closely

1-20     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, the 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, the 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 402(e)(3) or (h), Section 403(b), or Section 414(h)

 4-8     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, then the secretary, clerk, or other person who by

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

4-25     of the municipality;

4-26                 (3)  five persons who are employees of the regularly

4-27     organized active fire department of the municipality;

 5-1                 (4)  one person who is a retired member of the fund

 5-2     with at least 20 years of participation in the fund; and

 5-3                 (5)  two persons, each of whom is a registered voter of

 5-4     the municipality, has been a resident of the municipality for at

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

 5-6     and who is not a municipal officer or employee.

 5-7           (c)  To serve as a trustee under Subsection (b)(3) of this

 5-8     section, a person must be elected by ballot of the employees of the

 5-9     fire department.  That election shall be held during the last

5-10     quarter of the year preceding the January in which the term of a

5-11     trustee occupying one of those positions expires.  The trustee

5-12     serves a term of three years.  Three of the trustees described

5-13     under Subsection (b)(3) of this section shall be elected from the

5-14     suppression division of the fire department.  One of the trustees

5-15     representing the suppression division must have the rank of

5-16     firefighter or engineer-operator, and the position on the board to

5-17     which that trustee is elected is designated as Position I.  One of

5-18     the trustees representing the suppression division must have the

5-19     rank of captain or senior captain, and the position on the board to

5-20     which that trustee is elected is designated as Position II.  One of

5-21     the trustees representing the suppression division must have the

5-22     rank of district chief, deputy chief, or assistant chief, and the

5-23     position on the board to which that trustee is elected is

5-24     designated as Position III.  One of the trustees described under

5-25     Subsection (b)(3) of this section shall be elected from the fire

5-26     prevention division, and the position on the board to which that

5-27     trustee is elected is designated as Position IV.  One of the

 6-1     trustees described under Subsection (b)(3) of this section shall be

 6-2     elected from the fire alarm operators division or the fire

 6-3     department repair division, and the position on the board to which

 6-4     that trustee is elected is designated as Position V.

 6-5           (d)  To serve as a trustee under Subsection (b)(4) of this

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

 6-7     members with at least 20 years of participation in the fund.  The

 6-8     election shall be held during the last quarter of every third year

 6-9     starting in 1997.  The trustee serves a three-year term, starting

6-10     in January after the trustee is elected.

6-11           (e)  To serve as a trustee under Subsection (b)(5) of this

6-12     section, a person must be appointed by the elected members of the

6-13     board.  Each of those trustees serves a staggered term of two

6-14     years.  The appointment or reappointment of one of those trustees

6-15     shall take place in December of each year.

6-16           (f)  If a vacancy occurs in an elected position on the board,

6-17     the vacancy shall be filled in the manner provided in this section

6-18     for the election of the trustee to that position.  The election may

6-19     occur either at the next following regular election of trustees by

6-20     members of the fire department or in a special election called by

6-21     the board.  If a vacancy occurs in a position appointed by the

6-22     elected trustees of the board, that position shall be filled by a

6-23     vote of the elected trustees of the board.  A trustee who is

6-24     elected or selected to fill a vacancy holds office for the

6-25     unexpired term of the trustee who vacated that position.

6-26           (g)  Each trustee of the board shall, at the first board

6-27     meeting following the trustee's most recent election or

 7-1     appointment, take an oath of office that the trustee will

 7-2     diligently and honestly administer the affairs of the fund and that

 7-3     the trustee will not knowingly violate or willingly permit this

 7-4     article to be violated.

 7-5           (h)  The board shall annually elect from among the trustees a

 7-6     chair, a vice chair, and a secretary.  The person described under

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

 7-8     fund under penalty of that person's official bond and oath of

 7-9     office.

7-10           (i)  A trustee of the board may not receive compensation for

7-11     service on the board.

7-12           (j)  A majority of the trustees of the board constitutes a

7-13     quorum to transact business.  An order of the board must be made by

7-14     vote recorded in the minutes of the board's proceedings.  Each

7-15     decision of the board in a matter under the board's jurisdiction is

7-16     final and binding as to each affected firefighter, member, and

7-17     beneficiary, subject only to the rights of appeal specified by this

7-18     article.

7-19           (k)  The board shall receive, manage, and disburse the fund

7-20     for the municipality.  The board may hear and determine

7-21     applications for retirement and claims for disability and designate

7-22     the beneficiaries or persons entitled to participate as provided by

7-23     this article.

7-24           (l)  The board shall hold regular monthly meetings at a time

7-25     and place as the board by resolution designates and may hold

7-26     special meetings on call of the chair as the chair determines is

7-27     necessary, keep accurate minutes of board meetings and records of

 8-1     board proceedings, keep separate from all other municipal funds all

 8-2     money for the use and benefit of the fund, and keep a record of

 8-3     claims, receipts, and disbursements.  A disbursement from the fund

 8-4     may be made in accordance with procedures established by the board.

 8-5           (m)  The municipality shall provide full and timely

 8-6     information to the board on matters relating to the hiring of new

 8-7     firefighters, compensation of members, members' deaths or

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

 8-9     firefighters as is reasonably required by the board, from time to

8-10     time, for the board to administer the fund and provide benefits

8-11     properly.

8-12           (n)  The board shall not later than January 31 of each year

8-13     make and file with the treasurer of the municipality a detailed and

8-14     itemized report of all receipts and disbursements with respect to

8-15     the fund, together with a statement of fund administration, and

8-16     shall make and file other reports and statements or furnish further

8-17     information as from time to time may be required or requested by

8-18     the treasurer of the municipality.

8-19           (o)  The secretary of the board shall, not later than the

8-20     seventh day after the date of each board meeting, forward true

8-21     copies of the minutes of the meeting to each fire station and to

8-22     each division of the fire department.

8-23           (p)  The board may, to the extent not otherwise specifically

8-24     reserved or delegated to others, manage the operation and

8-25     administration of the fund according to the terms and purposes of

8-26     this article and all applicable sections of the code and has the

8-27     powers necessary to accomplish that purpose, including the power

 9-1     to:

 9-2                 (1)  adopt for the administration of the fund written

 9-3     rules and guidelines not inconsistent with this article;

 9-4                 (2)  interpret this article and any summary plan

 9-5     descriptions or benefits procedures, except that each construction

 9-6     must meet any qualification requirements established under Section

 9-7     401 of the code;

 9-8                 (3)  correct any defect, supply any omission, and

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

9-10     manner and to the extent that the board considers expedient to

9-11     administer this article for the greatest benefit of all members;

9-12                 (4)  select, employ, and compensate employees the board

9-13     considers necessary or advisable in the proper and efficient

9-14     administration of the fund;

9-15                 (5)  determine all questions, whether legal or factual,

9-16     relating to eligibility for participation, service, or benefits or

9-17     relating to the administration of the fund to promote the uniform

9-18     administration of the fund for the benefit of all members;

9-19                 (6)  establish and maintain records necessary or

9-20     appropriate to the proper administration of the fund; and

9-21                 (7)  compel witnesses to attend and testify before the

9-22     board concerning matters related to the operation of this article

9-23     in the same manner provided for taking of testimony before notaries

9-24     public.

9-25           (q)  The chair may administer oaths to witnesses.

9-26           (r)  The board shall maintain at the offices of the fund the

9-27     original of each rule or guideline adopted under this section and

 10-1    shall deliver to the municipality a copy of each adopted rule or

 10-2    guideline.

 10-3          Sec. 3.  OTHER POWERS OF THE BOARD.  (a)  If the board

 10-4    determines that there is a surplus of funds in an amount exceeding

 10-5    the current demands on the fund, the board may invest the surplus

 10-6    in the manner provided by Chapter 802, Government Code.

 10-7          (b)  The board may employ persons to perform any investment,

 10-8    administrative, legal, medical, accounting, clerical, or other

 10-9    service the board considers appropriate, including:

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

10-11    public accountants to perform an audit of the fund at times and

10-12    intervals the board considers necessary;

10-13                (2)  a professional investment manager or firm of

10-14    managers as provided by Section 802.204, Government Code;

10-15                (3)  an actuary or actuarial firm at times and for

10-16    purposes the board considers necessary or appropriate;

10-17                (4)  an attorney or firm of attorneys to advise,

10-18    assist, or represent the board in any legal matter relating to the

10-19    fund, including litigation involving matters under this article; or

10-20                (5)  a physician to examine a firefighter before the

10-21    firefighter becomes a member of the fund or to examine a member or

10-22    beneficiary applying for or receiving a disability pension or

10-23    survivor benefit.

10-24          (c)  A fee incurred in connection with a service or person

10-25    employed under Subsection (b) of this section shall be paid from

10-26    the fund, except that the costs of audits under Subsection (b)(1)

10-27    of this section shall be paid from the fund only if the

 11-1    municipality does not pay that cost.

 11-2          (d)  The board may have an actuarial valuation performed each

 11-3    year, and for determining the municipality's contribution rate as

 11-4    provided by Section 13(d) of this article, the board may adopt a

 11-5    new actuarial valuation each year, except that an actuarial

 11-6    valuation that will result in an increased municipal contribution

 11-7    rate that is above the statutory minimum may be adopted only once

 11-8    every three years, unless the governing body of the municipality

 11-9    consents to a more frequent increase.

11-10          (e)  In addition to any other remedy the board has, including

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

11-12    civil action from any offending party or from the party's surety

11-13    money paid out or obtained from the fund through fraud,

11-14    misrepresentation, defalcation, theft, embezzlement, or

11-15    misapplication and may institute, conduct, and maintain the action

11-16    in the name of the board for the use and benefit of the fund.

11-17          (f)  The chair, in writing, may request the municipal

11-18    attorney to represent the board or the fund in any legal matter,

11-19    including litigation.  The municipal attorney is not entitled to

11-20    compensation from the fund for providing that representation.

11-21          (g)  The board may, from fund assets, purchase from an

11-22    insurer licensed to do business in this state insurance to cover

11-23    liabilities and losses of the fund and to indemnify and hold the

11-24    trustees of the board and employees of the board, individually and

11-25    collectively, harmless from the effects and consequences of their

11-26    acts, omissions, and conduct within the scope of their official

11-27    capacity as fiduciaries or cofiduciaries or within the scope of

 12-1    what the board trustee or employee believes in good faith, at the

 12-2    time, to be the board trustee's or employee's official capacity.

 12-3    An insurance company through which insurance is purchased under

 12-4    this subsection has a cause of action against a board trustee or

 12-5    employee to the extent that a loss results from the board trustee's

 12-6    or employee's wilful and malicious misconduct or gross negligence.

 12-7    If insurance is unavailable, insufficient, inadequate, or not in

 12-8    effect, the board may indemnify a board trustee or employee for

 12-9    liability imposed as damages and for reasonable costs and expenses

12-10    incurred by that individual in defense of an alleged act, error, or

12-11    omission committed in the individual's official capacity or within

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

12-13    faith, at the time, to be the board trustee's or employee's

12-14    official capacity.  The board may not indemnify a board trustee or

12-15    an employee for the amount of a loss that results from the board

12-16    trustee's or the employee's wilful and malicious misconduct or

12-17    gross negligence.  The board may establish a self-insurance fund to

12-18    pay claims for the indemnification.  The board shall provide that

12-19    the self-insurance fund must be limited to an amount not to exceed

12-20    the greater of three percent of the fund assets or $5 million.  The

12-21    self-insurance fund shall be invested in the same manner as other

12-22    assets of the fund, and all earnings and losses from investing the

12-23    self-insurance fund shall be credited to the self-insurance fund

12-24    unless that credit exceeds the limit on the self-insurance fund set

12-25    by the board or this subsection.  Amounts held in the

12-26    self-insurance fund may not be included in the actuarial valuation

12-27    for purposes of determining the municipal contribution rate or the

 13-1    assets available to satisfy the actuarial liabilities of the fund

 13-2    to pay service, disability, or death benefits provided by this

 13-3    article.  A decision to indemnify or make a reimbursement out of

 13-4    the  self-insurance fund must be made by a majority vote of board

 13-5    trustees eligible to vote on the matter.  If the proposed

 13-6    indemnification or reimbursement is of a trustee, that trustee may

 13-7    not vote on the matter.

 13-8          Sec. 4.  SERVICE PENSION BENEFITS.  (a)  A member with at

 13-9    least 20 years of participation who terminates active service for

13-10    any reason other than death is entitled to receive a service

13-11    pension provided by this section.

13-12          (b)  A member who terminates active service on or after

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

13-14    participation in the fund on the effective date of termination of

13-15    service is entitled to a monthly service pension, beginning on the

13-16    effective date of termination of active service, in an amount equal

13-17    to 50 percent of the member's average monthly salary, plus three

13-18    percent of the member's average monthly salary for each year of

13-19    participation in excess of 20 years, but not in excess of 30 years

13-20    of participation, for a maximum total benefit of 80 percent of the

13-21    member's average monthly salary.

13-22          (c)  A member who terminated active service before November

13-23    1, 1997, and who had completed at least 20 years of participation

13-24    on the effective date of termination of service is entitled on

13-25    retirement to receive a monthly service pension in the amount

13-26    provided under the terms of the Act in effect on the effective date

13-27    of that retirement, unless a subsequent benefit increase is

 14-1    expressly made applicable to that member.

 14-2          (d)  A member with a service or disability pension, other

 14-3    than a deferred retiree or an active member who has elected the

 14-4    DROP under Section 5(b) of this article, who began receiving

 14-5    benefits from the fund before November 1, 1997, or the member's

 14-6    eligible spouse, eligible child, or eligible parent who began

 14-7    receiving benefits from the fund before November 1, 1997, is

 14-8    entitled to a one-time additional benefit of $5,000 from the fund,

 14-9    payable in a lump sum as soon as administratively practicable after

14-10    November 1, 1997.

14-11          (e)  A retired or disabled member, other than a deferred

14-12    retiree or active member who has elected the DROP under Section

14-13    5(b) of this article, or the eligible survivor of a deceased

14-14    member, who has begun receiving monthly benefits before July 1,

14-15    1999, is entitled to an increase of $100 in the total monthly

14-16    benefit, beginning with the monthly payment made in July 1999,

14-17    which is not subject to increase under Section 11(c) of this

14-18    article.

14-19          (f)  The benefit under Subsection (d) shall be paid to the

14-20    member or to the eligible spouse of a deceased member.  If the

14-21    member is deceased and there is not an eligible spouse, the benefit

14-22    shall be divided equally among and paid to each eligible child of

14-23    the member, or, if there is not an eligible child, the benefit

14-24    shall be divided among the eligible parents of the member.

14-25          Sec. 5.  DEFERRED RETIREMENT OPTION PLAN.  (a)  A member who

14-26    is eligible to receive a service pension under Section 4 of this

14-27    article and who remains in active service may elect to participate

 15-1    in the deferred retirement option plan provided by this section.

 15-2    On subsequently terminating active service, a member who elected

 15-3    the DROP may apply for a monthly service pension under Section 4 of

 15-4    this article, except that the effective date of the member's

 15-5    election to participate in the DROP will be considered the member's

 15-6    retirement date for determining the amount of the member's monthly

 15-7    service pension.  The member may also apply for any DROP benefit

 15-8    provided under this section on terminating active service.  Except

 15-9    as provided by Subsection (l) of this section, an election to

15-10    participate in the DROP is irrevocable.

15-11          (b)  A member may elect to participate in the DROP by

15-12    complying with the election process established by the board.  The

15-13    member's election may be made at any time beginning on the date the

15-14    member has completed 20 years of participation in the fund and is

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

15-16    article.  The election becomes effective on the first day of the

15-17    month following the month in which the board approves the member's

15-18    DROP election.  Beginning on the effective date of the member's

15-19    DROP election, amounts equal to the deductions made from the

15-20    member's salary under Section 13(c) of this article shall be

15-21    credited to the member's DROP account.  If a DROP participant

15-22    remains in active service after the fifth anniversary of the

15-23    effective date of the member's DROP election, subsequent deductions

15-24    from the member's salary under Section 13(c) of this article may

15-25    not be credited to the member's DROP account and may not otherwise

15-26    increase any benefit payable from the fund for the member's

15-27    service.

 16-1          (c)  Beginning in the month a member's DROP election becomes

 16-2    effective, an amount equal to the monthly service pension the

 16-3    member would have received under Section 4 of this article and

 16-4    Section 11(c) of this article, if applicable, had the member

 16-5    terminated active service on the effective date of the member's

 16-6    DROP election shall be credited to a DROP account maintained for

 16-7    the member.  That monthly credit to the member's DROP account shall

 16-8    continue until the earlier of the date the member terminates active

 16-9    service or the fifth anniversary of the effective date of the

16-10    member's DROP election.

16-11          (d)  A member's DROP account shall be credited with earnings

16-12    or losses at an annual rate equal to the average annual return of

16-13    the fund over the five years preceding, but not including, the year

16-14    for which the credit is given.  Those earnings or losses shall be

16-15    credited at a time and in a manner determined by the board, except

16-16    that earnings or losses shall be credited not less  frequently than

16-17    once in each 13-month period and shall take into account partial

16-18    years of participation in the DROP.  If the member has not

16-19    terminated active service, the member's DROP account may not be

16-20    credited with earnings or losses after the fifth anniversary of the

16-21    effective date of the member's DROP election.

16-22          (e)  A member who terminates active service after

16-23    participating in the DROP is entitled to receive, in addition to

16-24    the member's service pension under Section 4 of this article, a

16-25    benefit equal to the balance of the member's DROP account.  Unless

16-26    the member elects to receive installment or partial distributions

16-27    in accordance with Subsection (f) or (g) of this section, the

 17-1    balance of a member's DROP account shall be paid to the member in a

 17-2    single lump-sum payment as soon as is administratively practicable

 17-3    after the member's termination of active service.

 17-4          (f)  In lieu of a single lump-sum payment, a member may elect

 17-5    to receive the balance of the member's DROP account in three

 17-6    substantially equal installments. A member electing the installment

 17-7    form of distribution is entitled to receive the first installment

 17-8    within a reasonable period after terminating active service.  The

 17-9    second and third installments shall be paid to the member on the

17-10    first and second anniversaries of the date of the first

17-11    installment.  A member electing to receive the member's DROP

17-12    account balance in installments may convert that election at any

17-13    time after receipt of the first installment to an election to

17-14    receive the remainder of the member's DROP account balance in a

17-15    lump-sum payment.  If a member elects to receive installments, the

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

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

17-18    balance of a member who elects to receive the member's DROP account

17-19    balance in installments may not be credited with interest after the

17-20    date of payment of the first installment.

17-21          (g)  The board may adopt by a majority vote the provisions of

17-22    Subsections (h) and (i) of this section.

17-23          (h)  In lieu of a single lump-sum payment, a member may elect

17-24    to receive up to two partial payments from the member's DROP

17-25    account for each calendar year, each in an amount elected by the

17-26    member in accordance with procedures established by the board, and

17-27    a member who elects partial payments may, at any time, elect to

 18-1    receive the member's entire remaining DROP account balance in a

 18-2    single lump-sum payment.

 18-3          (i)  If a member elects partial payments, for periods after a

 18-4    member terminates active service and before the member's DROP

 18-5    account is completely distributed, the member's DROP account shall

 18-6    be credited with earnings or losses of the fund as computed under

 18-7    Subsection (d) of this section and reduced by an administrative fee

 18-8    of one percent of the account balance each year, determined before

 18-9    adjustment for earnings or losses for the year.

18-10          (j)  An election by a member concerning installment or

18-11    partial payments as provided by Subsections (h) and (i) of this

18-12    section must satisfy the requirements of Section 401(a)(9) of the

18-13    code.  All distributions and changes in form of distribution must

18-14    be made in a manner and at a time that comply with that provision.

18-15          (k)  A member who elects to participate in the DROP is

18-16    considered to have terminated active service on the effective date

18-17    of the member's DROP election for purposes of computing and

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

18-19    and for purposes of computing and providing death benefits under

18-20    Section 7 of this article.  A salary earned or additional years of

18-21    participation completed after the member's DROP election becomes

18-22    effective may not be considered in the computation of retirement,

18-23    disability, or death benefits unless a DROP revocation is made as

18-24    prescribed by Subsection (n) of this section.

18-25          (l)  If a DROP participant dies before complete distribution

18-26    of the member's DROP account has been made, the member's DROP

18-27    account balance shall be distributed to the member's eligible

 19-1    beneficiaries, determined as follows:

 19-2                (1)  if the member is survived by a person who was the

 19-3    member's spouse on the member's last day of active service and one

 19-4    or more eligible children, one-half of the member's DROP account

 19-5    balance shall be paid to the eligible spouse, and the remaining

 19-6    one-half shall be divided equally among the member's eligible

 19-7    children;

 19-8                (2)  if the member is survived by a spouse described by

 19-9    Subdivision (1) of this subsection, but not by an eligible child,

19-10    the member's entire DROP account balance shall be paid to the

19-11    surviving spouse;

19-12                (3)  if the member is survived by one or more eligible

19-13    children, but not by a spouse described by Subdivision (1) of this

19-14    subsection, the member's DROP account balance shall be divided

19-15    equally among the eligible children;

19-16                (4)  if the member is not survived by a spouse

19-17    described by Subdivision (1) of this subsection or an eligible

19-18    child, the member's DROP account balance shall be divided equally

19-19    among each eligible parent;

19-20                (5)  if the member is not survived by a spouse

19-21    described by Subdivision (1) of this subsection, an eligible child,

19-22    or an eligible parent, the member's DROP account balance shall be

19-23    distributed in accordance with the member's beneficiary designation

19-24    filed with the board or, if the member has failed to file a valid

19-25    beneficiary designation, to the member's estate; and

19-26                (6)  if a member's spouse described by Subdivision (1)

19-27    of this subsection was not married to the member on the date the

 20-1    member's DROP election became effective, the spouse shall receive a

 20-2    reduced benefit equal to the benefit otherwise payable to the

 20-3    surviving spouse under this subsection, multiplied by the

 20-4    percentage of the period between the member's DROP election and the

 20-5    date the member left active service during which the spouse and the

 20-6    member were married, and the amount by which the spouse's benefit

 20-7    is reduced shall be divided among any other eligible survivors as

 20-8    if the member did not have an eligible spouse.

 20-9          (m)  An eligible beneficiary's share of a deceased member's

20-10    DROP account shall be distributed as soon as administratively

20-11    practicable after the member's death in the form of a single

20-12    lump-sum payment.  All distributions to beneficiaries under this

20-13    subsection must be made in a manner and at a time that comply with

20-14    Section 401(a)(9) of the code.

20-15          (n)  Except as otherwise provided by this subsection, a

20-16    member who participates in the DROP is ineligible for disability

20-17    benefits described by Section 6 of this article, and the member's

20-18    survivors are ineligible to receive enhanced death benefits

20-19    described by Section 7(c) of this article.  A DROP participant who

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

20-21    performing any substantial gainful employment because of an on-duty

20-22    disability may retroactively revoke the member's DROP election if

20-23    the revocation occurs before the member receives a distribution

20-24    from the member's DROP account or retirement benefits.  If a DROP

20-25    participant dies in the course of the performance of the member's

20-26    duty or dies as a result of an on-duty disability described by

20-27    Section 6(c) of this article, the DROP participant's eligible

 21-1    survivors under Section 7 of this article and the member's eligible

 21-2    DROP beneficiaries under Subsection (l) of this section may, by

 21-3    unanimous agreement, retroactively revoke the member's DROP

 21-4    election if the revocation occurs before receipt of a distribution

 21-5    from the member's DROP account, service pension benefits under

 21-6    Section 4 of this article, or death benefits under Section 7 of

 21-7    this article.  For purposes of this subsection, an on-duty

 21-8    disability must have occurred after the effective date of a

 21-9    member's election to participate in the DROP.  If a DROP election

21-10    revocation is made as prescribed by this subsection, the member's

21-11    DROP account is not distributed, and the member or the member's

21-12    beneficiary, as applicable, is entitled to benefits under this

21-13    article as if a DROP election had not been made.

21-14          (o)  A retired member who previously participated in the DROP

21-15    and who returns to active service is subject to the terms of this

21-16    section in effect at the time of the member's return to active

21-17    service.

21-18          (p)  After August 31, 2000, the board may set a date after

21-19    which additional members will not be allowed to elect to

21-20    participate in the DROP.  A member whose election to participate in

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

21-22    board is entitled to continue participating in the DROP.

21-23          Sec. 6.  DISABILITY PENSION BENEFITS.  (a)  If the board

21-24    determines that a member has suffered an on-duty disability, the

21-25    member is entitled to an on-duty disability pension as provided by

21-26    this section in lieu of any other benefit under this article.

21-27          (b)  If the board determines that a member is not capable of

 22-1    performing the usual and customary duties of the member's

 22-2    classification or position because of the member's on-duty

 22-3    disability, the member is entitled to receive a monthly disability

 22-4    pension, beginning on the effective date of the member's

 22-5    termination of active service, in an amount equal to the greater

 22-6    of:

 22-7                (1)  50 percent of the member's average monthly salary;

 22-8    or

 22-9                (2)  the service pension the member would have been

22-10    entitled to receive under Section 4 of this article based on years

22-11    of participation as of the effective date of the member's

22-12    termination of active service.

22-13          (c)  If the board determines that a member is not capable of

22-14    performing any substantial gainful activity because of the member's

22-15    on-duty disability, the member is entitled to receive a monthly

22-16    disability pension, beginning on the effective date of the member's

22-17    termination of active service, in an amount equal to the greater

22-18    of:

22-19                (1)  75 percent of the member's average monthly salary;

22-20    or

22-21                (2)  the service pension the member would have been

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

22-23    of participation on the effective date of the member's termination

22-24    of active service.

22-25          (d)  If a full-time active member with at least six years of

22-26    service becomes disabled or dies from heart or lung disease,

22-27    hypertension, or cancer, and the member successfully passed a

 23-1    physical examination before the claimed disability or death or on

 23-2    beginning employment as a firefighter, and the examination failed

 23-3    to reveal any evidence of the heart or lung disease,  hypertension,

 23-4    or cancer, that condition will be presumed to have caused an

 23-5    on-duty disability for purposes of determining eligibility for

 23-6    disability benefits under this section, and the amount of the

 23-7    disability benefit constitutes the pension amount that shall be

 23-8    used to determine the death benefit payable with respect to that

 23-9    member.  Another statutory presumption regarding the cause of

23-10    illnesses or conditions does not affect any benefit payable under

23-11    this Act.

23-12          (e)  If the board determines that a member is not capable of

23-13    performing the usual and customary duties of the member's

23-14    classification or position because of the member's off-duty

23-15    disability, the member is entitled to an off-duty disability

23-16    pension in lieu of any other benefit under this Act.  If the board

23-17    makes that determination, the member is entitled to receive a

23-18    monthly disability pension, beginning on the effective date of the

23-19    member's termination of active service, in an amount equal to the

23-20    greater of:

23-21                (1)  25 percent of the member's average monthly salary,

23-22    plus 2-1/2 percent of the member's average monthly salary for each

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

23-24    monthly disability pension under this subdivision may not exceed 50

23-25    percent of the member's average monthly salary; or

23-26                (2)  the service pension the member would have been

23-27    entitled to receive under Section 4 of this article based on years

 24-1    of participation on the effective date of the member's termination

 24-2    of active service.

 24-3          (f)  A member is not eligible for an on-duty or off-duty

 24-4    disability pension as provided by this section if the member's

 24-5    on-duty or off-duty disability is a direct and proximate result of

 24-6    a condition that existed on the date the member began membership in

 24-7    the fund.  In that event, if the member is not eligible to receive

 24-8    a service pension under Section 4 of this article, the member may

 24-9    elect any deferred pension or refund of contributions for which the

24-10    member is eligible under Section 8 of this article.  A member has a

24-11    preexisting condition under this subsection if the board determines

24-12    that the member had:

24-13                (1)  symptoms that would cause an ordinarily prudent

24-14    person to seek diagnosis, care, or treatment during the five-year

24-15    period before the effective date of the member's membership in the

24-16    fund; or

24-17                (2)  a condition for which medical advice or treatment

24-18    was recommended by or received from a physician during the

24-19    five-year period before the effective date of the member's

24-20    membership in the fund.

24-21          (g)  A person may not receive an on-duty or off-duty

24-22    disability pension from the fund unless the person or the person's

24-23    legal representative files with the board an application for

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

24-25    certificates of the member's disability signed and sworn to by the

24-26    member and the member's physician or by a physician selected by the

24-27    board.  The board may require other or additional evidence of

 25-1    disability before authorizing payment of disability pension

 25-2    benefits.

 25-3          (h)  The board shall make all determinations concerning

 25-4    benefits under this section in accordance with uniform principles

 25-5    consistently applied on the basis of medical or other evidence that

 25-6    the board determines is necessary or desirable.

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

 25-8    eligible to receive a service pension under Section 4 of this

 25-9    article, a disability pension under Section 6 of this article, or a

25-10    deferred pension under Section 8(a) of this article, or who is

25-11    receiving those benefits, the member's eligible survivors are

25-12    entitled to death benefits as follows:

25-13                (1)  if the member is survived by both an eligible

25-14    spouse and one or more eligible children, the eligible spouse is

25-15    entitled to receive a monthly death benefit equal to one-half of

25-16    the amount the member would have been entitled to receive, and the

25-17    surviving eligible children are entitled to receive a monthly death

25-18    benefit equal to the remainder of the amount the member would have

25-19    been entitled to receive, divided equally among the eligible

25-20    children;

25-21                (2)  if the member is not survived by an eligible

25-22    child, or if at any time after the death of the member an eligible

25-23    child is not entitled to a benefit, the monthly death benefit to be

25-24    paid the eligible spouse is equal to the full amount the member

25-25    would have been entitled to receive;

25-26                (3)  if the member is not survived by an eligible

25-27    spouse, or if the member's eligible spouse dies after being

 26-1    entitled to a death benefit under this section, the surviving

 26-2    eligible children are entitled to receive a monthly death benefit

 26-3    equal to the full monthly pension benefit the member would have

 26-4    been entitled to receive, divided equally among the member's

 26-5    eligible children then living; and

 26-6                (4)  if the member is not survived by an eligible

 26-7    spouse or an eligible child, a monthly death benefit equal to the

 26-8    full monthly pension benefit the member would have been entitled to

 26-9    receive shall be divided among the eligible parents of the deceased

26-10    member.

26-11          (b)  If a member's eligible spouse was married to the member

26-12    for less than five years and was not married to the member at the

26-13    time the member left active service, the eligible spouse is

26-14    entitled to receive a reduced benefit equal to the benefit

26-15    otherwise payable to the eligible spouse under this section,

26-16    multiplied by the time the eligible spouse was married to the

26-17    member, and divided by five years.  The amount by which the

26-18    eligible spouse's benefit is reduced shall be divided among any

26-19    other eligible survivors as if the member did not have an eligible

26-20    spouse.

26-21          (c)  Notwithstanding any other provision of this section, if

26-22    a member dies in the course of the performance of the member's

26-23    duties as a firefighter or suffers an on-duty disability and dies

26-24    as a result of the bodily injuries that caused the on-duty

26-25    disability, death benefits based on the member's service shall be

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

26-27    deceased member's average monthly salary.

 27-1          (d)  If a member dies after benefit payments have begun or at

 27-2    a time the member could have terminated active service and elected

 27-3    to receive a service pension or deferred pension immediately, the

 27-4    death benefits payable under this section shall begin or continue

 27-5    effective as of the member's date of death.  If a member who is not

 27-6    entitled to receive any monthly pension benefit under this article

 27-7    other than a deferred pension under Section 8(a) of this article

 27-8    dies before age 50, any monthly death benefits payable under this

 27-9    section shall begin on the date the deceased member would have

27-10    reached age 50.

27-11          (e)  In addition to the monthly death benefit provided under

27-12    Subsection (a) of this section, if an active member or a member

27-13    receiving a service pension under Section 4 of this article or a

27-14    disability pension under Section 6 of this article dies on or after

27-15    July 1, 1998, the member's eligible survivors are entitled to a

27-16    one-time $5,000 death benefit, payable as a lump sum as follows:

27-17                (1)  if the member is survived by an eligible spouse,

27-18    the eligible spouse is entitled to receive $5,000;

27-19                (2)  if the member is not survived by an eligible

27-20    spouse, the member's eligible children are entitled to receive

27-21    $5,000, divided equally among those children; or

27-22                (3)  if the member is not survived by an eligible

27-23    spouse or an eligible child, the $5,000 death benefit shall be

27-24    divided equally among the eligible parents of the deceased member.

27-25          (f)  A member in active service who dies, for purposes of

27-26    Subsection (a) of this section, shall be treated as having become

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

 28-1    member's death.

 28-2          (g)  If a member in active service dies and does not leave an

 28-3    eligible survivor, or the eligible survivors unanimously elect such

 28-4    a benefit in lieu of any other death benefit, a lump-sum benefit

 28-5    shall be paid in an amount equal to the refund, if any, to which

 28-6    the member would have been entitled under Section 8 of this article

 28-7    had the member terminated service on the date of the member's

 28-8    death.  That lump-sum benefit shall be paid to the eligible

 28-9    survivors as provided by Subsection (a) of this section, or if

28-10    there are not any eligible survivors, to the member's designated

28-11    beneficiary.  A member's beneficiary must be designated before the

28-12    member's death on a form approved by the board.  If more than one

28-13    beneficiary is designated, the benefit shall be divided equally

28-14    among the beneficiaries unless a different allocation is provided

28-15    in the designation.  If a member fails to properly designate a

28-16    beneficiary, the benefit provided by this subsection shall be

28-17    payable to the member's estate on application by the estate.  Money

28-18    payable under this subsection may not escheat to the state.

28-19          (h)  Death benefits are not payable under this Act, including

28-20    benefits to any survivor, based on a member's service if the board

28-21    determines that the member's death results from suicide or

28-22    attempted suicide that occurred before the member has completed two

28-23    years of participation or that the member's death results from a

28-24    disability arising out of an attempted suicide that occurred before

28-25    the member completed two years of participation.

28-26          (i)  A benefit payable under this section to a member's

28-27    eligible child ceases when the child ceases to be an eligible

 29-1    child.

 29-2          (j)  An eligible spouse is entitled to receive or continue to

 29-3    receive survivor benefits on remarriage, except that a person who

 29-4    is an eligible spouse of more than one member is entitled to

 29-5    receive survivor benefits as the eligible spouse of only the member

 29-6    whose survivor benefits are higher than the benefits of all other

 29-7    deceased members of whom the person is an eligible spouse.

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

 29-9    (a)  A member who terminates active service for any reason other

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

29-11    20 years of participation, is entitled to a monthly deferred

29-12    pension benefit, beginning at age 50, in an amount equal to 1.7

29-13    percent of the member's average monthly salary multiplied by the

29-14    amount of the member's years of participation.

29-15          (b)  In lieu of the deferred pension benefit provided under

29-16    Subsection (a) of this section, a member who terminates active

29-17    service for any reason other than death with at least 10 years of

29-18    participation, but less than 20 years of participation, may elect

29-19    to receive a lump-sum refund of the member's contributions to the

29-20    fund with interest computed at five percent, not compounded.  A

29-21    member's election to receive a refund of contributions must be made

29-22    on a form approved by the board.  The member's refund shall be paid

29-23    as soon as administratively practicable after the member's election

29-24    is received.

29-25          (c)  A member who terminates employment for any reason other

29-26    than death before the member has completed 10 years of

29-27    participation is entitled only to a refund of the member's

 30-1    contributions without interest and is not entitled to a deferred

 30-2    pension benefit under this section or to any other benefit under

 30-3    this article.  The member's refund shall be paid as soon as

 30-4    administratively practicable after the effective date of the

 30-5    member's termination of active service.

 30-6          Sec. 9.  PROOF OF CONTINUED DISABILITY.  (a)  The board may

 30-7    at any time require a person receiving a disability pension or

 30-8    receiving death benefits as a disabled child under this article to

 30-9    undergo a medical examination by a physician appointed or selected

30-10    by the board for that purpose.

30-11          (b)  A person retired for disability under Section 6(c) of

30-12    this article or a person receiving death benefits as a disabled

30-13    child under Section 7 of this article must file an annual report of

30-14    employment activities and earnings with the board.  The board shall

30-15    establish the form of the report and the time for filing the

30-16    report.

30-17          (c)  The result of the examination, the report by the

30-18    physician, and the report of employment activities and earnings

30-19    shall be considered by the board in determining whether the relief

30-20    in the case shall be continued, increased if less than the maximum

30-21    provided, decreased, or discontinued.  The board may reduce or

30-22    entirely discontinue all benefits to a person receiving benefits

30-23    under this article who, after notice from the board, fails to

30-24    appear for a required medical examination or fails to file the

30-25    report of employment activities and earnings.

30-26          Sec. 10.  NONSTATUTORY BENEFIT INCREASES.  The benefits

30-27    provided by this article may be increased if:

 31-1                (1)  the increase is first approved by an actuary

 31-2    selected by the board who, if an individual, is a Fellow of the

 31-3    Society of Actuaries, a Fellow of the Conference of Actuaries in

 31-4    Public Practice, or a member of the American Academy of Actuaries;

 31-5                (2)  a majority of the participating members of the

 31-6    fund vote for the increase by a secret ballot;

 31-7                (3)  the increase does not deprive a member, without

 31-8    the member's written consent, of a right to receive benefits that

 31-9    have already become fully vested and matured in a member; and

31-10                (4)  the State Pension Review Board approves the

31-11    increase, which approval may not be unreasonably withheld.

31-12          Sec. 11.  GENERAL PROVISIONS FOR CALCULATION AND PAYMENT OF

31-13    BENEFITS.  (a)  A member, eligible survivor, or beneficiary of a

31-14    member is not entitled to receive payments from a fund under more

31-15    than one section of this article in a particular capacity.

31-16    However, a person may be entitled to benefits both as a member and

31-17    as a survivor or beneficiary of another member.

31-18          (b)  After a member terminates active service, the amounts of

31-19    all benefits that the member or the member's beneficiaries may

31-20    become entitled to receive from the fund shall be computed on the

31-21    basis of the schedule of benefits in effect for the fund on the

31-22    effective date of the termination of the member's active service,

31-23    without adjustment for any subsequent increases of benefits unless

31-24    those increases are expressly made applicable to previously retired

31-25    members or their beneficiaries.

31-26          (c)  The benefits, including survivor benefits, payable based

31-27    on the service of a member who completed 30 or more years of

 32-1    participation, is or would have been 50 years old, or received or

 32-2    is receiving an on-duty disability pension under Section 6(c) of

 32-3    this article shall be increased by three percent in October of each

 32-4    year and in the month of the member's 50th birthday.

 32-5          (d)  In computing a member's years of participation, time

 32-6    served in the armed forces of the nation during war or national

 32-7    emergency is considered continuous service.  Except for that

 32-8    military service, credit for prior service shall be given only if a

 32-9    member returns to active service as a firefighter before the fifth

32-10    anniversary of a previous effective date of termination.

32-11          (e)  A retired firefighter may be recalled to duty by the

32-12    chief of the fire department in case of great conflagration and

32-13    shall perform those duties the chief directs but does not have a

32-14    claim against a municipality or the fund of that municipality for

32-15    payment for the duty performed.

32-16          (f)  A member, eligible survivor, or beneficiary who is

32-17    entitled to receive a benefit payment under this article is

32-18    entitled to receive the benefit beginning on the date the member

32-19    ceases to carry out the member's regular duties as a firefighter,

32-20    notwithstanding the fact that the member may remain on the payroll

32-21    of the member's fire department or receive sick leave, vacation, or

32-22    other pay after the effective date of termination of the member's

32-23    regular duties as a firefighter.  If there is a delay in beginning

32-24    payment of benefits resulting from the requirements of Section 6(g)

32-25    of this article for disability pensions, the member or beneficiary

32-26    shall, when the disability pension is approved by the board, be

32-27    paid the full amount of the disability pension that has accrued

 33-1    since the effective date of termination of the member's regular

 33-2    duties as a firefighter.

 33-3          (g)  A member may designate a trustee to receive the benefit

 33-4    payable to any eligible survivor or beneficiary other than the

 33-5    member's eligible spouse or a spouse eligible to receive a benefit

 33-6    under the DROP.  Any such designation must be made on a form

 33-7    approved by the board.

 33-8          (h)  A benefit payable under this article to a minor may be

 33-9    made only to the guardian of the estate of the minor.  If a benefit

33-10    becomes payable to any other person under a legal disability,

33-11    payment of that benefit may be made only to the conservator or the

33-12    guardian of that person's estate appointed by a court of competent

33-13    jurisdiction.  A payment made in accordance with this section on

33-14    behalf of a minor or other person under a legal disability fully

33-15    discharges the fund's obligation to that person.

33-16          (i)  Notwithstanding any other provision of this article, a

33-17    person entitled to receive benefit payments from the fund may:

33-18                (1)  make a one-time election to receive a smaller

33-19    pension or survivor benefit than is otherwise provided under this

33-20    article;

33-21                (2)  make a one-time election not to receive any future

33-22    annual increases in the pension or survivor benefits received by

33-23    the person or the person's beneficiary; or

33-24                (3)  make a one-time election not to receive a specific

33-25    benefit enhancement.

33-26          (j)  An election under Subsection (i) of this section must be

33-27    made in writing and submitted to the board for approval.  On the

 34-1    date the board grants approval of an election under Subsection (i)

 34-2    of this section, the election becomes irrevocable.

 34-3          (k)  A benefit under this article may not be integrated with

 34-4    benefits payable under the federal Social Security Act.  In a

 34-5    municipality in which firefighters are eligible to enroll for or

 34-6    receive retirement benefits under the Social Security Act, benefits

 34-7    that may be available to a member under the Social Security Act may

 34-8    not be taken into account in determining the amount of benefits a

 34-9    member may receive under this article.

34-10          (l)  If the board determines that the amount in the fund is

34-11    insufficient to pay in full any pension or disability benefits, all

34-12    pension and disability benefits made after the date of the

34-13    determination shall be reduced pro rata for the period the

34-14    insufficiency exists.

34-15          (m)  A benefit payable under this article because of the

34-16    death of a member or eligible beneficiary may not be paid to a

34-17    person convicted of causing that death but instead shall be paid as

34-18    if the convicted person predeceased the deceased member or

34-19    beneficiary.  If no beneficiary is entitled to the benefit as a

34-20    result, the benefit shall be paid to the decedent's estate.  Except

34-21    as otherwise permitted by this subsection with respect to

34-22    suspension of benefits, the board is not required to withhold

34-23    payment to a person convicted of causing the death of a member or

34-24    eligible beneficiary until the board receives actual notice of the

34-25    conviction of that person.  The board may suspend payment of a

34-26    benefit payable on the death of a member or an eligible beneficiary

34-27    on the indictment of the person who would otherwise be entitled to

 35-1    the benefit, and the suspension remains in effect until the board

 35-2    determines that a final disposition of the charges relating to the

 35-3    cause of death has occurred.  If a benefit payment is suspended

 35-4    under this subsection and the person is not convicted, the benefit

 35-5    again becomes payable with interest computed at the rate earned by

 35-6    the fund during the time the benefit payment was suspended.  For

 35-7    purposes of this subsection, a person has been convicted of causing

 35-8    the death of a member or eligible beneficiary if:

 35-9                (1)  the person has pleaded guilty or nolo contendere

35-10    to, or the person has been found guilty by a court of, an offense

35-11    at the trial of which it is established that the person's

35-12    intentional or knowing act or omission caused the death of the

35-13    member or eligible beneficiary, regardless of whether sentence is

35-14    imposed or probated; and

35-15                (2)  an appeal of the conviction is not pending, and

35-16    the time provided for appeal has expired.

35-17          Sec. 12.  APPEALS OF BENEFIT DECISIONS.  (a)  A member who is

35-18    eligible for retirement for length of service or disability or who

35-19    has a claim for temporary disability, or any of the member's

35-20    beneficiaries, who is aggrieved by a decision or order of the

35-21    board, whether on the basis of rejection of a claim or of the

35-22    amount allowed, may appeal from the decision or order of the board

35-23    to a district court in the county in which the board is located by

35-24    giving written notice of the intention to appeal.  The notice must

35-25    contain a statement of the intention to appeal, together with a

35-26    brief statement of the grounds and reasons the party feels

35-27    aggrieved.  The notice must be served personally on the chair,

 36-1    secretary, or treasurer of the board not later than the 20th day

 36-2    after the date of the order or decision.  After service of the

 36-3    notice, the party appealing shall file with the district court a

 36-4    copy of the notice of intention to appeal, together with the

 36-5    affidavit of the party making service showing how, when, and on

 36-6    whom the notice was served.

 36-7          (b)  Not later than the 30th day after the date of service of

 36-8    the notice of intention to appeal on the board, the secretary or

 36-9    treasurer of the board shall file with the district court a

36-10    transcript of all papers and proceedings in the case before the

36-11    board.  When the copy of the notice of intention to appeal and the

36-12    transcript have been filed with the court, the appeal is considered

36-13    perfected, and the court shall docket the appeal, assign the appeal

36-14    a number, fix a date for hearing the appeal, and notify both the

36-15    appellant and the board of the date fixed for the hearing.

36-16          (c)  At any time before issuing a decision on the appeal, the

36-17    court may require further or additional proof or information,

36-18    either documentary or under oath.  On issuing a decision on the

36-19    appeal, the court shall give to each party to the appeal a copy of

36-20    the decision and shall direct the board as to the disposition of

36-21    the case.  The final decision or order of the district court is

36-22    appealable in the same manner as are civil cases generally.

36-23          Sec. 13.  MEMBERSHIP AND CONTRIBUTIONS.  (a)  Each person who

36-24    becomes a firefighter before age 36 becomes a member of the fund if

36-25    the person's application for membership is accepted by the board.

36-26    In accepting employment as a firefighter, and on becoming a member

36-27    of the fund, a firefighter agrees to make contributions required

 37-1    under this article of members of the fund who are in active service

 37-2    and is entitled to participate in the benefits of membership in the

 37-3    fund as provided by this article.

 37-4          (b)  The board shall establish minimum physical requirements

 37-5    for membership in the fund that may not exceed the physical

 37-6    requirements established by the Fire Fighters' and Police Officers'

 37-7    Civil Service Commission under Section 143.022, Local Government

 37-8    Code, and that must be the same for all applicants.  At the time

 37-9    that physical examinations are administered on behalf of the

37-10    municipality, each applicant must be provided written notice that a

37-11    copy of the results of the examination will be forwarded to the

37-12    board to determine eligibility for membership in the fund and the

37-13    existence of any preexisting condition.  Not later than the 10th

37-14    day after the date of a physical examination performed on an

37-15    applicant for a beginning position in the fire department as

37-16    required by Section 143.022, Local Government Code, the

37-17    municipality shall provide to the board a copy of all documents

37-18    resulting from the physical examination.  The board may require

37-19    additional physical examinations if necessary to determine whether

37-20    the applicant meets the minimum physical requirements for

37-21    membership in the fund.  The fund shall pay the cost of any

37-22    additional physical examination the board requires.  Within a

37-23    reasonable time after receiving the examination reports of an

37-24    applicant, the board shall, on the basis of one or more physical

37-25    examinations, determine whether the applicant meets the minimum

37-26    physical requirements for membership in the fund.  The board shall

37-27    notify the applicant and the chief of the fire department not later

 38-1    than the 10th calendar day after the date of the board's decision

 38-2    on the applicant's satisfaction of the minimum physical

 38-3    requirements.  If the board rejects the applicant, the applicant

 38-4    may request further examination by a board of three physicians

 38-5    appointed by the board at the expense of the applicant.  If a

 38-6    physician board finds that an applicant meets the minimum physical

 38-7    requirements for membership in the fund, the board shall accept the

 38-8    applicant for membership.  If accepted by the board, the

 38-9    applicant's membership in the fund is effective on being appointed

38-10    to the position of probationary firefighter.

38-11          (c)  Each member in active service shall make contributions

38-12    to the fund in an amount equal to 7.7 percent of the member's

38-13    salary at the time of the contribution.  The governing body of the

38-14    municipality shall deduct the contributions from the member's

38-15    salary and shall forward the contributions to the fund as soon as

38-16    practicable.

38-17          (d)  The municipality shall make monthly contributions to the

38-18    fund in an amount equal to the product of the contribution rate

38-19    certified by the board and the aggregate salaries paid to members

38-20    of the fund during the month for which the contribution is made.

38-21    The board shall certify the municipality's contribution rate for

38-22    each year or portion of a year based on the results of actuarial

38-23    valuations made at least every three years.  The municipality's

38-24    contribution rate shall be composed of the normal cost plus the

38-25    level percentage of salary payment required to amortize the

38-26    unfunded actuarial liability over a period of 40 years beginning on

38-27    January 1, 1983, computed on the basis of an acceptable actuarial

 39-1    reserve funding method approved by the board.  Notwithstanding any

 39-2    other provision of this article, the contributions by the

 39-3    municipality, when added to any contributions with respect to a

 39-4    qualified governmental excess benefit arrangement maintained in

 39-5    accordance with Section 14(c) of this article, may not be less than

 39-6    twice the amount paid into the fund by contributions of the

 39-7    members.

 39-8          (e)  Notwithstanding Subsection (d) of this section, if one

 39-9    or more members of the fund are appointed to positions in the fire

39-10    department, and those appointments are not made based on the

39-11    results of a competitive examination, the minimum contribution rate

39-12    required of the municipality for any year is increased by an amount

39-13    equal to the difference, if any, between:

39-14                (1)  the municipality's actuarially determined

39-15    contribution rate computed in accordance with Subsection (d) of

39-16    this section, without regard to the minimum contribution rate

39-17    specified, computed based on the actual monthly salary or

39-18    compensation for all members; and

39-19                (2)  the municipality's actuarially determined

39-20    contribution rate computed in accordance with Subsection (d) of

39-21    this section, without regard to the minimum contribution rate

39-22    specified, but for each member so appointed, computed based, for

39-23    all months of participation after the date of appointment, on the

39-24    monthly salary or compensation being paid to the person who holds

39-25    the position the member held immediately before the member was

39-26    appointed to the new position.

39-27          (f)  Money deducted from salaries or compensation as provided

 40-1    by this section and the payments and contributions provided by this

 40-2    section become a part of the fund of the municipality in which the

 40-3    contributing member serves at the time of the contribution.  In

 40-4    accordance with Section 14(c) of this article, contributions under

 40-5    any qualified governmental excess benefit arrangement do not become

 40-6    part of the trust fund assets of the fund.

 40-7          (g)  On action of its governing body, a municipality may pick

 40-8    up members' contributions prescribed under Subsection (c) of this

 40-9    section for purposes of Section 414(h)(2) of the code.  A member's

40-10    salary is affected by  this subsection only as this subsection

40-11    relates to the computation of pension contributions and gross pay

40-12    for federal tax purposes.  The computation of pension benefits,

40-13    severance pay, and other benefits is not affected.

40-14          Sec. 14.  INTERNAL REVENUE CODE LIMITATIONS.  (a)

40-15    Notwithstanding any other provision of this article, a member may

40-16    not accrue a benefit or allowance under this article in excess of

40-17    an amount that, when added to all other pension benefits received

40-18    under plans of the municipality that are qualified under Section

40-19    401 of the code, results in an annual benefit in excess of the

40-20    applicable limits provided by Section 415 of the code.  That

40-21    accrual limitation applies only as long as satisfaction of Section

40-22    415 of the code is necessary to maintain the tax-qualified status

40-23    of the fund under Section 401 of the code.  Any benefit accruals

40-24    limited under this subsection must be certified by a qualified

40-25    actuary selected by the board.

40-26          (b)  Notwithstanding any other provision of this article, the

40-27    fund shall be administered in a manner that complies with the code,

 41-1    United States Treasury Department regulations, and Internal Revenue

 41-2    Service rulings and notices applicable to public retirement

 41-3    systems.  The board shall adopt rules and amend or repeal

 41-4    conflicting rules to ensure compliance with this subsection.

 41-5          (c)  The board may establish and maintain a qualified

 41-6    governmental excess benefit arrangement, in accordance with Section

 41-7    415(m) of the code, solely for the purpose of providing to members

 41-8    the amount of the member's pension benefit otherwise payable under

 41-9    the fund that exceeds the limitations on benefits imposed by

41-10    Section 415 of the code.  The board may maintain a separate trust

41-11    solely for providing benefits under the arrangement or may maintain

41-12    the arrangement on an unfunded basis through municipal

41-13    contributions as benefits become payable.   Benefits provided by

41-14    that arrangement may not be paid from the trust fund assets that

41-15    are available for payment of any other benefit under this article.

41-16    Benefits under any qualified governmental excess benefit

41-17    arrangement shall be paid or funded entirely through municipal

41-18    contributions in an amount approved by the board.  An election may

41-19    not be provided at any time to a member, directly or indirectly, to

41-20    defer compensation under the arrangement.  The operation and

41-21    administration of any qualified governmental excess benefit

41-22    arrangement is the responsibility of the board, which has the same

41-23    powers concerning the arrangement as are provided to the board

41-24    under this article concerning the fund.

41-25          Sec. 15.  EXEMPTION OF BENEFITS FROM JUDICIAL PROCESS.  The

41-26    fund may not, either before or after its order of disbursement by

41-27    the board to a member, a spouse eligible to receive a benefit under

 42-1    the DROP, an eligible spouse, the guardian of an eligible child, or

 42-2    an eligible parent, be held, seized, subjected to, or levied on by

 42-3    virtue of any execution, attachment, garnishment, injunction, or

 42-4    other writ, order, or decree, or any process issued out of, or by,

 42-5    any court for the payment or satisfaction of any debt, damage,

 42-6    claim, demand, or judgment against a member, a spouse eligible to

 42-7    receive a benefit under the DROP, an eligible spouse, the guardian

 42-8    of an eligible child, or an eligible parent.  The fund or any claim

 42-9    against the fund may not be directly or indirectly assigned or

42-10    transferred, and any attempt to assign or transfer the fund or a

42-11    claim is void.  The fund shall be sacredly held, kept, and

42-12    disbursed only for the purposes provided by this article.

42-13          Sec. 16.  SERVICE CREDIT FOR MEMBERS PREVIOUSLY MEMBERS OF

42-14    SIMILAR FUNDS.  (a)  A person who becomes a firefighter in a

42-15    municipality to which this article applies may receive service

42-16    credit for prior employment with the fully paid fire department of

42-17    another municipality in this state with a similar fund benefitting

42-18    only firefighters of that municipality to which the firefighter

42-19    contributed if:

42-20                (1)  the firefighter is under 36 years of age at the

42-21    time of applying to the fund;

42-22                (2)  the firefighter passes a physical examination

42-23    taken at the firefighter's expense and performed by a physician

42-24    selected by the board;

42-25                (3)  the firefighter pays into the fund an amount equal

42-26    to the total contribution the firefighter would have made had the

42-27    firefighter been employed by the municipality, at the

 43-1    municipality's pay scale, instead of the municipality by which the

 43-2    firefighter was previously employed;

 43-3                (4)  the firefighter applies for that credit not later

 43-4    than the 60th day after the date on which membership begins; and

 43-5                (5)  the firefighter has moved directly into employment

 43-6    at the fire department from the fire department for which the prior

 43-7    service credit is sought, without any intervening employment or

 43-8    extended interruption.

 43-9          (b)  A member may receive credit for prior service in more

43-10    than one fire department under Subsection (a) of this section only

43-11    if there have not been interruptions in employment and each

43-12    preceding service meets the other requirements of Subsection (a) of

43-13    this section.

43-14          (c)  The municipality to which the member has transferred

43-15    shall pay an amount equal to the amount it would have paid had the

43-16    member been employed by that municipality instead of the

43-17    municipality by which the firefighter was previously employed,

43-18    based on the municipality's pay scale, plus six percent interest,

43-19    compounded annually.  Both the municipality's contribution and the

43-20    member's contribution must be paid promptly on approval of the

43-21    member's application for service credit.

43-22          (d)  A firefighter may not participate under this section in

43-23    the fund of the municipality to which the firefighter has

43-24    transferred until the firefighter has fully complied with this

43-25    article and the municipality  has complied with Subsection (c) of

43-26    this section.

43-27          (e)  A firefighter eligible for prior service credit may

 44-1    participate in the fund, subject to the other requirements of this

 44-2    article, without obtaining that credit, and if the firefighter does

 44-3    not comply with the provisions and time limits of this section, the

 44-4    firefighter is ineligible for the credit.

 44-5          Sec. 17.  CONFIDENTIALITY OF INFORMATION ABOUT MEMBERS OR

 44-6    BENEFICIARIES.  (a)  Information contained in records that are in

 44-7    the custody of a fund established under this article concerning an

 44-8    individual member, retiree, or beneficiary is confidential under

 44-9    Chapter 552, Government Code, and may not be disclosed in a form

44-10    identifiable with a specific individual unless:

44-11                (1)  the information is disclosed to:

44-12                      (A)  the individual;

44-13                      (B)  the individual's attorney, guardian,

44-14    executor, administrator, conservator, or other person who the board

44-15    determines is acting in the interest of the individual or the

44-16    individual's estate;

44-17                      (C)  a spouse or former spouse of the individual

44-18    if the board determines that the information is relevant to the

44-19    spouse's or former spouse's interest in member accounts, benefits,

44-20    or other amounts payable by the retirement system; or

44-21                      (D)  a person with written authorization from the

44-22    individual to receive the information; or

44-23                (2)  the information is disclosed under an

44-24    authorization of the board that specifies the reason for the

44-25    disclosure.

44-26          (b)  This section does not prevent the disclosure of the

44-27    status or identity of an individual as a member, former member,

 45-1    retiree, deceased member, or beneficiary of the fund.

 45-2          (c)  A determination and disclosure under Subsection (a)(2)

 45-3    of this section may be made without notice to the individual

 45-4    member, retiree, or beneficiary.

 45-5          SECTION 2.  (a)  Article 6243e.2(1), Revised Statutes, as

 45-6    added by this Act, restates and amends Chapter 432, Acts of the

 45-7    64th Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil

 45-8    Statutes), as that law existed before repeal by this Act, and

 45-9    continues in effect each firemen's relief and retirement fund

45-10    established under that law.

45-11          (b)  Notwithstanding Article 6243e.2(1), Revised Statutes, as

45-12    added by this Act, a member of the board of trustees of a

45-13    firefighters' relief and retirement fund in a municipality to which

45-14    that article applies serving on October 31, 1997, continues to

45-15    serve until the expiration of the term for which the member was

45-16    elected or appointed under Chapter 432, Acts of the 64th

45-17    Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil Statutes),

45-18    as that law existed before repeal by this Act, and that law is

45-19    continued in effect for that purpose.

45-20          SECTION 3.  Chapter 432, Acts of the 64th Legislature, 1975

45-21    (Article 6243e.2, Vernon's Texas Civil Statutes), is repealed.

45-22          SECTION 4.  This Act takes effect November 1, 1997.

45-23          SECTION 5.  The importance of this legislation and the

45-24    crowded condition of the calendars in both houses create an

45-25    emergency and an imperative public necessity that the

45-26    constitutional rule requiring bills to be read on three several

45-27    days in each house be suspended, and this rule is hereby suspended.