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TX JM-108 December 29, 1983

Did a Texas firefighter pension rule barring new membership after age 35 violate the federal age-discrimination law?

Short answer: No. JM-108 said the rule limited pension eligibility rather than firefighter hiring, and the federal law allowed bona fide benefit-plan terms that were not a device to evade the act.

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This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.

Currency note: this opinion is from 1983
Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: This is an official Texas Attorney General opinion. AG opinions are persuasive authority in Texas courts but are not binding precedent. This summary is for informational purposes only and is not legal advice. The opinion dates from 1983 and construes former pension provisions and federal age-discrimination law; verify current pension and employment law before relying on it.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Texas AG Opinion JM-108: Firefighter Pension Entry Age and the ADEA

Plain-English summary

JM-108 concluded that article 6243e's maximum age of 35 for beginning participation in a municipal fire-department pension fund did not violate the federal Age Discrimination in Employment Act.

"We advise that sections 10A(f), 10A-2(f), and 10B of article 6243e, V.T.C.S., are not in violation of the federal age discrimination act, 29 U.S.C. 623, by reason of setting a maximum age of 35 years for beginning eligibility in a municipal fire department pension fund."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0108.pdf

The controlling distinction was between employment and pension membership. Only firefighters who were eligible for the pension fund had to join it as a condition of appointment. The statute anticipated that a city could hire a person who was too old to enter the fund.

"The language emphasized above makes it obvious that only those persons eligible to participate in the fund must do so as a condition of employment, and that the hiring of persons not eligible for membership therein because of their age ('at the time he first enters service as a fireman') is anticipated."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0108.pdf

The federal law also allowed an employer to follow a bona fide retirement, pension, or insurance plan that was not a subterfuge to evade the act, while making clear that a benefit plan could not excuse a refusal to hire.

"[I]t shall not be unlawful for an employer 'to observe the terms of . . . any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no such employee benefit plan shall excuse the failure to hire any individual.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0108.pdf

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the age-35 rule prevent a city from hiring an older firefighter?

No. JM-108 read the statute as restricting pension-fund eligibility, not employment eligibility.

"[T]he hiring of persons not eligible for membership therein because of their age . . . is anticipated."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0108.pdf

Who had to join the pension fund as a condition of appointment?

Only a new firefighter who was eligible for membership.

"Each person who shall hereafter become a fireman in any city which has a Firemen's Relief and Retirement Fund to which he is eligible for membership, shall become a member of such Fund as a condition of his appointment."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0108.pdf

What did the pension statute say about the entry age?

It made a person ineligible for fund membership if the person was more than 35 when first entering firefighter service.

"[N]o person shall be eligible to membership in any such Fund who is more than thirty-five (35) years of age at the time he first enters service as a fireman."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0108.pdf

Was there a federal case addressing a comparable Texas pension rule?

Yes. The opinion cited Alford v. City of Lubbock, which upheld a comparable provision in the former Texas Municipal Retirement System statute against the same federal age-discrimination challenge.

"In Alford v. City of Lubbock, 664 F.2d 1263 (5th Cir. 1982), cert. denied, 456 U.S. 975 (1982), the court held that a provision found in article 6243h, V.T.C.S. (repealed), establishing the Texas Municipal Retirement System, a provision comparable in all respects to the article 6243e passages, was not in any way violative of the federal age discrimination law."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0108.pdf

Background and legal framework

The request asked whether article 6243e's pension-entry age violated the federal statute protecting people ages 40 through 70 from employment discrimination.

"You have requested our opinion on whether certain provisions of article 6243e, V.T.C.S., setting a maximum age of 35 for beginning eligibility in municipal fire-department pension funds, violate the federal age discrimination statute, which protects persons ages 40 to 70."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0108.pdf

The federal provision made it unlawful for an employer to refuse to hire, discharge, or otherwise discriminate regarding compensation, terms, conditions, or privileges of employment because of age.

"[T]o fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0108.pdf

Holding

"Sections 10A(f), 10A-2(f), and 10B of article 6243e, V.T.C.S., are not in violation of the Federal Age Discrimination Act, 29 U.S.C. 623, by reason of setting a maximum age of 35 years for beginning eligibility in a municipal fire department pension fund."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0108.pdf

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

JIM MATTOX
Attorney General

December 29, 1983

Honorable Lee F. Jackson
Chairman
Committee on Employment Practices
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-108

Re: Whether the provisions of article 6243e, V.T.C.S., setting a maximum age of 35 for beginning eligibility in municipal fire department pension funds violate federal age discrimination statute

Dear Representative Jackson:

You have requested our opinion on whether certain provisions of article 6243e, V.T.C.S., setting a maximum age of 35 for beginning eligibility in municipal fire-department pension funds, violate the federal age discrimination statute, which protects persons ages 40 to 70. See 29 U.S.C. § 623 et seq. Specifically, you point to sections 10A(f), 10A-2(f), and 10B of article 6243e.

Subsection 623(a)(1) of the Age Discrimination in Employment Act makes it unlawful for an employer

to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.

Article 6243e, V.T.C.S., which establishes the "Firemen's Relief and Retirement Fund," violates the federal provision, it is suggested, because it establishes a maximum age of 35 years for eligibility to fund membership and makes membership in the fund a condition of employment, thus establishing a maximum entry age for hiring purposes.

We do not agree. Section 10B of article 6243e specifies that no person shall be eligible to begin participation in a fund on account of prior service who was more than 35 years of age "at the time he began his service as a fireman for the first time." Sections 10A(f) and 10A-2(f), which concern cities of different sizes, both state the following:

Each person who shall hereafter become a fireman in any city which has a Firemen's Relief and Retirement Fund to which he is eligible for membership, shall become a member of such Fund as a condition of his appointment . . . provided, however, that no person shall be eligible to membership in any such Fund who is more than thirty-five (35) years of age at the time he first enters service as a fireman. . . .

The language emphasized above makes it obvious that only those persons eligible to participate in the fund must do so as a condition of employment, and that the hiring of persons not eligible for membership therein because of their age ("at the time he first enters service as a fireman") is anticipated.

Aside from other reasons why the congressional enactment might not apply, subsection 623(f)(2) of the federal law expressly states that it shall not be unlawful for an employer

to observe the terms of . . . any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no such employee benefit plan shall excuse the failure to hire any individual. . . .

In Alford v. City of Lubbock, 664 F.2d 1263 (5th Cir. 1982), cert. denied, 456 U.S. 975 (1982), the court held that a provision found in article 6243h, V.T.C.S. (repealed), establishing the Texas Municipal Retirement System, a provision comparable in all respects to the article 6243e passages, was not in any way violative of the federal age discrimination law.

We advise that sections 10A(f), 10A-2(f), and 10B of article 6243e, V.T.C.S., are not in violation of the federal age discrimination act, 29 U.S.C. 623, by reason of setting a maximum age of 35 years for beginning eligibility in a municipal fire department pension fund. Other questions need not be addressed.

SUMMARY

Sections 10A(f), 10A-2(f), and 10B of article 6243e, V.T.C.S., are not in violation of the Federal Age Discrimination Act, 29 U.S.C. 623, by reason of setting a maximum age of 35 years for beginning eligibility in a municipal fire department pension fund.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood

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