79R12687 HLT-F
By: Armbrister S.B. No. 522
Substitute the following for S.B. No. 522:
By: Griggs C.S.S.B. No. 522
A BILL TO BE ENTITLED
AN ACT
relating to the Texas Emergency Services Retirement System;
providing an administrative penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 8, Government Code, is amended by adding
Subtitle H to read as follows:
SUBTITLE H. TEXAS EMERGENCY SERVICES RETIREMENT SYSTEM
CHAPTER 861. GENERAL PROVISIONS
Sec. 861.001. DEFINITIONS. In this subtitle:
(1) "Actuarially sound pension system" means a system
in which the amount of contributions is sufficient to cover the
normal cost and amortize the unfunded accrued actuarial liability
in a period that does not exceed 30 years.
(2) "Auxiliary employee" means a person who receives
compensation at a rate that does not exceed the federal minimum wage
by more than $2 an hour, as established under the Fair Labor
Standards Act of 1938 (29 U.S.C. Section 201 et seq.), for
performing emergency services and is certified by a political
subdivision of this state as being regularly engaged in the
performance of duties for a participating department in an
appointive office or position that normally requires services from
the person for fewer than 1,000 hours a year, but excludes a person
who is eligible to receive credit for the same service in either the
Texas County and District Retirement System or the Texas Municipal
Retirement System.
(3) "Commissioner" means the firefighters' pension
commissioner appointed under Section 21, Texas Local Fire Fighters
Retirement Act (Article 6243e, Vernon's Texas Civil Statutes).
(4) "Dependent" means an unmarried child, natural or
adopted, who:
(A) is less than 18 years of age;
(B) is less than 19 years of age and a full-time
student at an elementary or secondary school; or
(C) became disabled before the child's 22nd
birthday and remains disabled.
(5) "Emergency services" means only those services
relating to fire, rescue, and emergency medical services, including
support services for those duties, performed by a volunteer or
auxiliary employee of a participating department.
(6) "Fund" means the Texas emergency services
retirement fund.
(7) "Local board" means a local board of trustees
established under Section 865.012.
(8) "Member" means a volunteer or auxiliary employee
who participates in the pension system.
(9) "Pension system" means the Texas Emergency
Services Retirement System.
(10) "Qualified service" means service:
(A) for a participating department that is
recognized as an emergency services department by its governing
body and that conducts at least 48 hours of training in a calendar
year; and
(B) that is performed by a member in good
standing in the department who attends at least 20 hours of annual
training and at least 25 percent of the department's emergencies in
a calendar year or who does not attend because the member is absent
because of military duty.
(11) "State board" means the state board of trustees
established under Section 865.001.
(12) "Volunteer" means a person who performs emergency
services for civic, charitable, or humanitarian reasons, receives
no monetary compensation from a participating department, and is
not subject to the compensation requirements provided for employees
by the Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et
seq.).
Sec. 861.002. PENSION SYSTEM. The pension system is a
public entity. The Texas Emergency Services Retirement System is
the name by which all its business shall be transacted, all its
funds invested, and all its cash, securities, and other property
held.
Sec. 861.003. POWERS AND PRIVILEGES. The pension system
has the powers, privileges, and immunities of a corporation as well
as the powers, privileges, and immunities conferred by this
subtitle.
Sec. 861.004. EXEMPTION FROM EXECUTION. All benefit
payments, contributions, money in the pension system fund, and
rights accrued or accruing under this subtitle to any person are
exempt from garnishment, attachment, state and local taxation,
levies, and any other process and are unassignable.
Sec. 861.005. NO DIVERSION OF ASSETS. The fund must be
maintained for the exclusive benefit of members, retirees, and
their beneficiaries. At no time before the termination of the fund
and the satisfaction of all liabilities with respect to members,
retirees, and their beneficiaries may any part of the principal of
or interest from fund assets be used for or diverted to a purpose
other than the exclusive benefit of the members, retirees, and
their beneficiaries.
Sec. 861.006. PLAN QUALIFICATION AND DISTRIBUTIONS. (a)
The legislature intends that this subtitle be construed and
administered in a manner so that the pension system's benefit plan
will be considered a qualified plan under Section 401(a) of the
Internal Revenue Code of 1986 (26 U.S.C. Section 401). The state
board may adopt rules that modify the plan as necessary to meet
those qualification requirements.
(b) Notwithstanding any other provision of this subtitle,
all distributions under this subtitle must be made in accordance
with applicable provisions of the Internal Revenue Code of 1986 and
regulations adopted under that code.
(c) The state board by rule may authorize an eligible
rollover distribution to be made in the form of a direct
trustee-to-trustee transfer.
Sec. 861.007. FORFEITURE NOT TO INCREASE BENEFITS. A
forfeiture that occurs under this subtitle may not be used to
increase the benefits that any member would otherwise receive under
this subtitle.
CHAPTER 862. MEMBERSHIP
Sec. 862.001. PARTICIPATION BY DEPARTMENT. (a) The
governing body of a department that performs emergency services
may, in the manner provided for taking official action by the body,
elect to participate in the pension system. A governing body shall
notify the commissioner as soon as practicable of an election made
under this subsection. Except as provided by Subsection (b), an
election to participate under this subsection is irrevocable.
(b) The governing body of a department that makes an
election under Subsection (a) may terminate participation in the
pension system not later than the fifth anniversary of the date of
the election to participate, except that a department that begins
participation after September 1, 2005, may not terminate that
participation.
Sec. 862.002. MEMBERSHIP BY INDIVIDUAL. (a) Except as
otherwise provided by this section, each person who performs
service as a volunteer or auxiliary employee of a participating
department is a member of the pension system.
(b) A person is not a member of the pension system if the
person:
(1) is less than 18 years of age;
(2) is in a probationary period of service before
becoming a regular member of a participating department for which
the department is not making contributions for the service;
(3) does not receive a certification of physical
fitness or assignment to support duties under Section 862.003; or
(4) is retired under this subtitle, regardless of
whether the person continues to participate in emergency
service-related functions for a department from which the person
retired.
Sec. 862.003. CERTIFICATION OF PHYSICAL FITNESS. (a) A
prospective member shall present to the local board a certification
of physical fitness by a qualified physician. The person becomes a
member of the pension system if the local board accepts the
certification or if the local board assigns the person to support
duties.
(b) A local board shall assign a person to support duties if
the person does not present an acceptable certification and the
person is at least 18 years of age, is not retired from the pension
system, and is not serving a probationary period before becoming a
regular member of a participating department.
Sec. 862.004. DEPARTMENTAL ELECTIONS AND MERGERS. The
state board may adopt rules for governing body elections under
Section 862.001 or for the merger of existing pension plans into the
pension system.
CHAPTER 863. CREDITABLE SERVICE
Sec. 863.001. CREDIT FOR CURRENT SERVICE. A member is
entitled to receive credit in the pension system for each month of
qualified service for which the system receives the contributions
required by this subtitle.
Sec. 863.002. CREDIT FOR MILITARY SERVICE. The pension
system shall grant credit for qualified service for military duty
in accordance with Section 414(u) of the Internal Revenue Code of
1986 (26 U.S.C. Section 414(u)) and other applicable federal law.
Sec. 863.003. TRANSFER OF SERVICE CREDIT. A member who
terminates service, except by retirement, and later resumes service
with the same participating department or begins service with
another participating department may transfer all previously
accrued service credit to the new department.
Sec. 863.004. PRIOR SERVICE OF MEMBER BEFORE DEPARTMENTAL
PARTICIPATION. The state board by rule may authorize the granting
of credit for service with a participating department that was
performed before the date the department began participation in the
pension system. The costs of granting prior service credit under
this section must be determined on a basis that maintains the
pension system as actuarially sound.
CHAPTER 864. BENEFITS
Sec. 864.001. ELIGIBILITY FOR SERVICE RETIREMENT ANNUITY.
(a) The state board by rule shall determine the period of qualified
service and, if appropriate, the age required for a member to
receive a service retirement annuity with full benefits after the
member terminates service with a participating department. The
state board by rule may provide for partial vesting of benefits
after a particular period.
(b) The state board may change the benefit formula for any
person who is not an annuitant of the pension system.
Sec. 864.002. SERVICE RETIREMENT ANNUITY. (a) A service
retirement annuity is payable in monthly installments based on:
(1) the governing body's average monthly contribution
during the member's term of qualified service under this subtitle,
not including a contribution to reduce the unfunded accrued
actuarial liability of the pension system; and
(2) a formula adopted by the state board by rule that
allows the pension system, assuming maximum state contributions are
provided under Section 865.015, to be maintained as actuarially
sound.
(b) The state board by rule may provide, for each year of
qualified service in excess of the period provided under Section
864.001 for full benefits, an additional amount that is a
percentage of the person's monthly pension, compounded annually. A
person may receive a proportional credit for months of qualified
service that make up less than a year.
Sec. 864.003. SERVICE RETIREMENT BENEFITS FROM MORE THAN
ONE DEPARTMENT. A member who performs qualified service for more
than one participating department may become eligible to receive a
service retirement annuity for service from each department but, if
the person dies while a member, the member's beneficiary must
choose between an on-duty and off-duty death benefit, if
applicable.
Sec. 864.004. DISABILITY RETIREMENT ANNUITY. (a) A member
must, at the time of disability, elect between a service or
disability retirement annuity, if eligible for both.
(b) A member who is disabled during the performance of
emergency service duties is automatically vested 100 percent as of
the date of disability if the disability occurs before the member
has completed the period provided under Section 864.001 for full
service retirement benefits.
(c) A member whose disability results from performing
emergency service duties is guaranteed a disability retirement
annuity of $300 a month or a greater amount that the state board by
rule adopts based on monthly contributions of a participating
department for its members.
(d) A person who is determined to be temporarily disabled
must apply to the Social Security Administration and be certified,
not later than the second anniversary of the date the person was
determined to be temporarily disabled, as permanently disabled by
that agency or by any alternative procedure the state board
provides by rule.
Sec. 864.005. CERTIFICATION AND CONTINUANCE OF DISABILITY.
(a) A local board shall require a member who is receiving temporary
disability benefits to file a disability rating report every three
months from a physician chosen by the local board. If a report
indicates a significant change of condition, the local board, after
notice and a hearing, may adopt an order to terminate payments or
place the member on permanent disability. The local board shall
send a copy of each order adopted under this subsection to the
commissioner.
(b) Disability benefits cease if the recipient becomes
capable of performing the duties of the person's most recent
position with a participating department or the duties of another
occupation for which the person is reasonably suited by education,
training, and experience. Rejection of a suitable offer of
employment is conclusive evidence for purposes of this subtitle
that the person is no longer eligible to receive disability
retirement benefits, if the employment would provide the person
with a salary equal to or greater than the salary the person was
earning at the time the disability occurred.
(c) The state board or a local board may require financial
information from a person as a condition to the continued receipt of
disability retirement benefits, including federal income tax
returns and wage earning forms. Failure to provide requested
information is a ground for terminating benefits.
Sec. 864.006. MEMBER SERVICE DEATH BENEFITS. (a) The
surviving spouse and dependents of a member who dies as a result of
performing emergency service duties are entitled to receive in
equal shares a death benefit annuity equal to two-thirds of the
service retirement annuity that the decedent would have been
entitled to receive if the decedent had been able to retire, vested
at 100 percent, on the date of the decedent's death. As long as both
the spouse and one or more dependents survive, an additional
one-third of that annuity is payable to the dependents in equal
shares.
(b) The beneficiary of a member who dies as a result of
performing emergency service duties is entitled to a lump-sum
benefit of $5,000 or a greater amount that the state board provides
by rule.
Sec. 864.007. MEMBER NONSERVICE DEATH BENEFIT. The state
board by rule may provide the beneficiary of a deceased member whose
death did not result from the performance of emergency service
duties a lump-sum benefit that is the greater of:
(1) the amount contributed to the fund on the
decedent's behalf; or
(2) the sum that would have been contributed on the
decedent's behalf from whatever source at the end of the period
provided under Section 864.001 for full service retirement
benefits.
Sec. 864.008. VESTED MEMBER DEATH BENEFIT ANNUITY. (a) The
surviving spouse of a deceased member who dies before retirement
but after meeting the minimum age and service requirements for
service retirement is entitled to two-thirds of the monthly annuity
that the decedent would have received if the decedent had retired on
the date of death.
(b) The surviving spouse of a deceased member who dies after
terminating service with all participating departments and meeting
a vesting requirement under Section 864.001 but before attaining
the age of 55 is entitled to a death benefit annuity, beginning on
the date that the decedent would have attained that age, equal to
two-thirds of the monthly annuity to which the decedent would have
been entitled on that date.
Sec. 864.009. RETIREE DEATH BENEFIT ANNUITY. The surviving
spouse of a person who dies after retirement is entitled to
two-thirds of the monthly annuity the decedent was receiving at the
time of death.
Sec. 864.010. BENEFITS FOR MEMBERS AND RETIREES OF
DEPARTMENT THAT WITHDRAWS FROM PARTICIPATION OR CEASES TO EXIST.
(a) The commissioner shall continue to administer benefits of the
pension system for members and retirees who perform service for a
formerly participating department that has withdrawn from
participation in the pension system or has ceased to exist.
(b) The governing body of a political subdivision in which a
department described by Subsection (a) is or was located shall
perform the duties required of a local board for the members and
retirees who served for the formerly participating department.
Sec. 864.011. FIRST PAYMENT OF RETIREMENT OR DEATH BENEFIT
ANNUITY. The cashing or depositing of the first payment of a
service, disability, or death benefit annuity by a person entitled
to it is considered acceptance of the amount of the annuity and, if
the annuity is based on the payee's service, is conclusive evidence
for purposes of this subtitle that the payee is retired.
Sec. 864.012. CERTAIN BENEFICIARIES. (a) If a member names
more than one beneficiary for a lump-sum death benefit, the pension
system shall divide the benefit equally among the named
beneficiaries or, if the member has designated a proportional
division, each beneficiary is entitled to the proportion
designated.
(b) Except as provided by Subsection (a), lump-sum death
benefits are subject to the laws of descent and distribution if the
decedent has not provided for testamentary disposition.
Sec. 864.013. COST-OF-LIVING INCREASE. The state board by
rule may provide a cost-of-living increase for any benefit provided
by the pension system. If benefits are increased, the state board
shall require an increase in governing body contributions if
necessary to maintain an actuarially sound pension system.
Sec. 864.014. STATE BOARD AUTHORITY FOR LUMP-SUM PAYMENTS.
In lieu of any annuity otherwise payable under this subtitle, the
state board by rule may provide for a lump-sum payment if the board
determines that a lump-sum payment is cost-efficient or is
necessary for the pension system to remain actuarially sound.
Sec. 864.015. CURRENT PLAN DESIGN. Notwithstanding any
other provision of this chapter, the state board by rule may
maintain the benefit structure in effect on August 31, 2005,
regardless of whether the pension system is actuarially sound.
Sec. 864.016. CLAIM AND APPEAL PROCEDURE. (a) A claim for
benefits must be filed with the local board. On receiving a claim,
the local board shall hold a hearing to decide the claim. The local
board shall send a written copy of its decision to the claimant and
the commissioner.
(b) A person aggrieved by a decision of a local board
relating to eligibility for or the amount of benefits under this
subtitle may appeal the decision to the commissioner.
(c) An appeal under this section is begun by delivering a
notice of appeal to the presiding officer or secretary of the local
board that made the decision. The notice must be delivered not
later than the 20th day after the date of the decision and contain a
brief description of the reasons for the appeal. The aggrieved
person must file a copy of the notice with the commissioner.
(d) An appeal under this section is held in Austin and is a
contested case under Chapter 2001, conducted as a de novo hearing by
the State Office of Administrative Hearings.
(e) After a hearing under Subsection (d), the commissioner
shall decide each appeal from a local board decision, issue a
written opinion, and notify the local board and the claimant if the
commissioner overrules the local board's decision.
(f) A person aggrieved by a decision of the commissioner
under this section may appeal the decision to the state board. The
state board shall decide each appeal based on the hearing record.
(g) A decision of the state board may not be appealed to a
court or be subject to any other legal process.
CHAPTER 865. ADMINISTRATION
Sec. 865.001. COMPOSITION OF STATE BOARD. (a) The state
board of the pension system is composed of nine members appointed by
the governor for staggered terms of six years, with the terms of
three trustees expiring on September 1 of each odd-numbered year.
(b) Six trustees must be active members of the pension
system, one of whom must represent emergency medical services
personnel.
(c) In appointing the six trustees under Subsection (b), the
governor shall select from a list of three to five nominees
submitted by the State Firemen's and Fire Marshals' Association of
Texas for each vacancy. The governor may reject a list submitted
under this subsection and request a new list containing different
nominees.
(d) Three trustees must be persons who have experience in
the fields of finance, securities investment, or pension
administration.
(e) Appointments to the state board shall be made without
regard to the race, color, disability, sex, religion, age, or
national origin of the appointee.
Sec. 865.002. INELIGIBILITY OF CERTAIN EMPLOYEES FOR STATE
BOARD. (a) A person is not eligible for appointment to the state
board if the person or the person's spouse is employed by or
participates in the management of a business entity or other
organization regulated by or receiving funds from the state board
or the fund.
(b) A person may not serve as a trustee of the state board or
act as the general counsel to the state board if the person is
required to register as a lobbyist under Chapter 305 because of the
person's activities for compensation on behalf of a business or an
association related to the operation of the state board.
Sec. 865.003. COMPENSATION; EXPENSES. Trustees of the
state board serve without compensation but may be reimbursed for
actual and necessary expenses incurred in performing state board
functions.
Sec. 865.004. VOTING. (a) Each trustee of the state board
is entitled to one vote. Except as provided by Subsection (b), at
any meeting of the state board, a vote by a majority of the trustees
present is necessary for a decision by the trustees.
(b) The concurrence of a majority of the members of the
state board is required for a vote regarding:
(1) eligibility for service retirement described by
Section 864.001;
(2) the computation of a service retirement annuity
described by Section 864.002;
(3) a cost-of-living increase described by Section
864.013; or
(4) a lump-sum payment adopted under Section 864.014.
Sec. 865.005. GROUNDS FOR REMOVAL OF TRUSTEES. (a) It is a
ground for removal from the state board that a trustee:
(1) does not have at the time of appointment the
qualifications required by Section 865.001;
(2) does not maintain during service on the state
board the qualifications required by Section 865.001;
(3) violates a prohibition established by Section
865.002;
(4) cannot discharge the person's duties for a
substantial part of the term for which the person is appointed
because of illness or disability; or
(5) is absent from more than half of the regularly
scheduled state board meetings that the trustee is eligible to
attend during a calendar year unless the absence is excused by a
majority vote of the state board.
(b) The validity of an action of the state board is not
affected by the fact that it is taken when a ground for removal of a
trustee exists.
(c) If the commissioner has knowledge that a potential
ground for removal exists, the commissioner shall notify the
presiding officer of the state board of the ground. The presiding
officer shall then notify the governor that a potential ground for
removal exists.
Sec. 865.006. GENERAL DUTIES OF STATE BOARD. (a) The state
board shall employ a certified public accountant, an actuary, and
an investment consultant for the fund and may acquire computer,
custodial, or investment management services for the fund. The
costs of accounting, actuarial, investment consulting, computer,
custodial, or investment management services and other
administrative expenses may be paid from income earned by
investment of the fund. No portion of the corpus or income of the
fund may be used for purposes other than the benefit of members,
retired emergency services personnel, and their beneficiaries.
(b) The state board shall adopt rules necessary for the
administration of the fund. The state board shall adopt rules to
provide a proration of the requirements for qualified service for a
member who performs service for only a portion of a calendar year
and may provide by rule for the manner in which member attendance or
training hours are to be computed.
Sec. 865.007. ADMINISTERING SYSTEM ASSETS. (a) The state
board shall administer all assets of the pension system. The state
board is the trustee of the pension system's assets.
(b) The state board may acquire, hold, manage, purchase,
sell, assign, trade, transfer, and dispose of any security,
evidence of debt, or other investment in which the pension system's
assets may be invested.
(c) The state board or the commissioner may accept on behalf
of the pension system gifts of money or other property from any
public or private source.
Sec. 865.008. INVESTMENT OF ASSETS. (a) If a surplus
exists in the fund over the amount necessary to pay benefits due for
a reasonable period of time, the state board shall invest the
surplus.
(b) The assets of the pension system shall be invested and
reinvested in accordance with Section 67, Article XVI, Texas
Constitution. A determination of whether the state board has
exercised prudence with respect to an investment decision must be
made, taking into consideration the investment of all assets of the
trust over which the state board has management and control rather
than considering the prudence of a single investment.
Sec. 865.009. TRUST FUND. The Texas emergency services
retirement fund is a trust fund established with the comptroller.
Sec. 865.010. COMMISSIONER'S DUTIES. (a) The commissioner
shall oversee the distribution of all benefits.
(b) The commissioner shall collect the revenues for the fund
from the governing bodies of participating departments.
(c) The commissioner may request and administer, in an
emergency, state funds in addition to those required by this
subtitle and appropriated by the legislature.
(d) The commissioner is responsible for recovering any
fraudulently acquired benefits. If it appears that fraud has
occurred, the commissioner shall notify the appropriate local board
and the claimant and hold a hearing. If after the hearing the
commissioner determines that benefits have been or are being
fraudulently acquired, the commissioner shall seek action in a
court.
Sec. 865.011. RECORDS AND REPORTS. (a) The commissioner
may at any reasonable time examine the records and accounts of local
boards.
(b) The commissioner shall require in a timely manner
periodic reports from the local boards and shall prepare necessary
forms for use by local boards.
(c) The commissioner shall prepare an annual report on the
activity and status of the fund and submit the report to the
governor, the lieutenant governor, and the speaker of the house of
representatives.
Sec. 865.012. LOCAL BOARD. (a) A local board is composed
of:
(1) one trustee selected by the governing body of the
political subdivision of which a participating department is a
part;
(2) three trustees who are active members representing
a participating department chosen by a majority of the emergency
services personnel in the department who are eligible to
participate in the pension system; and
(3) two trustees who are representatives of the
political subdivision who are chosen by the other members of the
local board.
(b) Trustees of a local board serve staggered two-year
terms. At the first meeting of a local board, the trustees shall
draw lots to determine the length of the term to be served, with the
terms of two trustees to be two years and the terms of two trustees
to be one year. The first appointments of trustees appointed by
other members of the local board are to be one trustee for a
two-year term and one trustee for a one-year term.
(c) A local board shall hold not fewer than four meetings a
year under Chapter 551.
(d) A vacancy on a local board is filled for the remainder of
the unexpired term by the procedure by which the position was
originally filled.
(e) A local board shall elect a presiding officer from the
trustees at its first meeting.
(f) At any meeting of a local board, a vote by a majority of
the trustees present is necessary for a decision by the trustees.
(g) A trustee of a local board may not receive compensation
for service as a trustee but may be reimbursed by the governing body
of a participating department for actual and necessary expenses
incurred in performing local board functions.
Sec. 865.013. MONITORING OF CONTRIBUTION SUBMISSION. A
local board shall monitor the timely submission of required
contributions to the commissioner.
Sec. 865.014. LOCAL CONTRIBUTIONS. (a) Each governing
body of a political subdivision of which a participating department
is a part shall contribute for each member for each month of service
beginning on the date that the member enters the pension system at a
rate determined in accordance with Subsection (b) and may make
additional contributions as determined by the political
subdivision. If the participating department is located in more
than one political subdivision, the governing bodies of the
political subdivisions shall contribute equally for each member for
each month of service.
(b) The state board by rule shall determine the minimum, and
may determine a maximum, contribution for each member of a
participating department for each month of qualified service at a
rate the state board determines necessary, after consultation with
the actuary, to make the pension system actuarially sound.
(c) Contributions required as provided by this section
shall be paid at the times and in the manner that the state board
prescribes by rule. Contributions required by this section shall
be submitted by electronic funds transfer unless the commissioner
grants an exception based on the difficulty of a participating
department's use of that payment method. Contributions that are
not paid within the time required by the state board accrue interest
at the most recent assumed actuarial rate of return on investments
of the fund.
(d) The state board may by rule require a monthly
contribution from political subdivisions that do not participate in
the pension system but whose employees or former employees are
members or retirees of the pension system in an amount necessary to
pay the expenses of administering benefits for those persons.
(e) The attorney general may file suit to collect unpaid
accrued interest. Interest recovered shall be deposited in the
fund.
Sec. 865.015. STATE CONTRIBUTIONS. The state shall
contribute the amount necessary to make the pension system
actuarially sound each year, except that the state's contribution
may not exceed one-third of the total of all contributions by
governing bodies in a particular year.
Sec. 865.016. ADMINISTRATIVE PENALTY. (a) The state board
may impose an administrative penalty on a local board that fails to
file a required report in a timely manner.
(b) The amount of the penalty may not exceed $5,000. The
amount shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts to correct the violation; and
(5) any other matter that justice may require.
(c) The state board may adopt rules for determining the
amount of a penalty.
(d) The enforcement of the penalty may be stayed during the
time the order is under judicial review if the person pays the
penalty to the clerk of the court or files a supersedeas bond with
the court in the amount of the penalty. A person who cannot afford
to pay the penalty or file the bond may stay the enforcement by
filing an affidavit in the manner required by the Texas Rules of
Civil Procedure for a party who cannot afford to file security for
costs, subject to the right of the state board to contest the
affidavit as provided by those rules.
(e) The attorney general may file suit to collect the
penalty. Penalties recovered will be deposited in the fund.
(f) A proceeding to impose the penalty is considered to be a
contested case under Chapter 2001.
Sec. 865.017. INTERRUPTION OF PAYMENTS. (a) The pension
system shall withhold payment of a monthly retirement annuity if a
participating department attempts to provide information to the
commissioner relating to continued eligibility to receive the
payments and the recipient fails to cooperate or provide the
requested information. The state board may adopt rules to enforce
this subsection.
(b) The pension system may not begin service or disability
retirement annuity or death benefit payments based on the service
of a person whose local board is not current in its filing of a
required periodic report.
Sec. 865.018. CERTIFICATION OF FUND. (a) In this section,
"qualified actuary" means a fellow of the Society of Actuaries or a
member of the American Academy of Actuaries who has at least five
years of experience with public retirement systems.
(b) The commissioner and the state board shall certify the
actuarial and financial soundness of the fund every two years with
the assistance of a qualified actuary.
Sec. 865.019. CONFIDENTIALITY OF INFORMATION ABOUT
MEMBERS, ANNUITANTS, AND BENEFICIARIES. (a) Information contained
in records that are in the custody of the pension system concerning
an individual member, annuitant, or beneficiary is confidential
under Section 552.101 and may not be disclosed in a form
identifiable with a specific individual unless:
(1) the information is disclosed to:
(A) the individual or the individual's attorney,
guardian, executor, administrator, conservator, or other person
who the commissioner determines is acting in the interest of the
individual or the individual's estate;
(B) a spouse or former spouse of the individual
after the commissioner determines that the information is relevant
to the spouse's or former spouse's interest in member accounts,
benefits, or other amounts payable by the pension system;
(C) a governmental official or employee after the
commissioner determines that disclosure of the information
requested is reasonably necessary to the performance of the duties
of the official or employee; or
(D) a person authorized by the individual in
writing to receive the information; or
(2) the information is disclosed under a subpoena and
the commissioner determines that the individual will have a
reasonable opportunity to contest the subpoena.
(b) This section does not prevent the disclosure of the
status or identity of an individual as a member, former member,
retiree, deceased member or retiree, or beneficiary of the pension
system.
(c) The commissioner may designate other employees of the
pension system to make the necessary determinations under
Subsection (a).
(d) A determination and disclosure under Subsection (a) may
be made without notice to the individual member, annuitant, or
beneficiary.
SECTION 2. The Texas Statewide Emergency Services
Retirement Act (Article 6243e.3, Vernon's Texas Civil Statutes) is
repealed.
SECTION 3. This Act takes effect September 1, 2005.