GOVERNMENT CODE


TITLE 8. PUBLIC RETIREMENT SYSTEMS


SUBTITLE H. TEXAS EMERGENCY SERVICES RETIREMENT SYSTEM


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) At least five trustees must be active members of the pension system, one of whom must represent emergency medical services personnel.

(c) One trustee may be a retiree of the pension system.

(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.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 697 (H.B. 2751), Sec. 9, eff. September 1, 2009.

Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.08, eff. June 14, 2013.

Sec. 865.0011. SUNSET REVIEW. The state board of the pension system is subject to review under Chapter 325 (Texas Sunset Act) but is not abolished under that chapter. The state board shall be reviewed during the period in which state agencies scheduled to be abolished in 2025, and every 12th year after that year, are reviewed.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.09, eff. June 14, 2013.

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.

(c) A person may not be a trustee or an employee of the pension system employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.), if:

(1) the person is an officer, employee, or paid consultant of a Texas trade association in the field of emergency services, including firefighting, or public retirement systems; or

(2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of emergency services, including firefighting, or public retirement systems.

(d) In this section, a Texas trade association means a cooperative and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(e) A person may not serve as a trustee or act as the general counsel to the state board or the pension system 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.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.10, eff. June 14, 2013.

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.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Sec. 865.0035. STATE BOARD MEMBER TRAINING. (a) A person who is appointed to and qualifies for office as a member of the state board may not vote, deliberate, or be counted as a member in attendance at a meeting of the state board until the person completes a training program that complies with this section.

(b) A training program must provide the person with information regarding:

(1) this subtitle;

(2) the programs, functions, rules, and budget of the pension system;

(3) the results of the most recent formal audit of the system;

(4) the requirements of laws relating to open meetings, public information, administrative procedure, and conflicts of interest; and

(5) any applicable ethics policies adopted by the system or the Texas Ethics Commission.

(c) A person appointed to the state board is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.11, eff. June 14, 2013.

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.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

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 executive director has knowledge that a potential ground for removal exists, the executive director 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.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.12, eff. June 14, 2013.

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.

(c) The state board shall develop and implement policies that:

(1) clearly separate the policy-making responsibilities of the state board and the management responsibilities of the executive director and the staff of the pension system; and

(2) provide the public with a reasonable opportunity to appear before the state board and to speak on any issue under the jurisdiction of the state board.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.13, eff. June 14, 2013.

Sec. 865.0061. WRITTEN POLICY ON MANAGING AND ADMINISTERING CONTRACTS. The state board shall adopt a written policy, including procedures, to guide staff in managing and administering contracts entered into by or on behalf of the pension system. The written policy adopted under this section must, at a minimum:

(1) address how the pension system:

(A) plans for contracting needs and develops solicitation documents;

(B) reviews, evaluates, and awards contract proposals;

(C) manages and approves contract changes;

(D) identifies performance issues and resolves contract disputes;

(E) monitors contract expenditures; and

(F) closes out contracts; and

(2) require the pension system to maintain a central location for filing contracts and information related to contracts entered into by or on behalf of the pension system.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.14, eff. June 14, 2013.

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 executive director may accept on behalf of the pension system gifts of money or other property from any public or private source.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.15, eff. June 14, 2013.

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.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Sec. 865.009. TRUST FUND. The Texas emergency services retirement fund is a trust fund established with the comptroller.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Sec. 865.0095. EXECUTIVE DIRECTOR. (a) The state board, by a majority vote of all members, shall appoint a person other than a member of the board to serve at the board's will as executive director.

(b) To be eligible to serve as the executive director, a person must:

(1) be a citizen of the United States; and

(2) have executive ability and experience necessary to conduct the duties of executive director.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.16, eff. June 14, 2013.

Sec. 865.010. EXECUTIVE DIRECTOR'S DUTIES. (a) The executive director shall oversee the distribution of all benefits.

(b) The executive director shall collect the revenues for the fund from the governing bodies of participating departments.

(c) The executive director may request and administer state funds appropriated by the legislature in addition to those required by this subtitle.

(d) The state board is responsible for recovering any fraudulently acquired benefits. If it appears that fraud has occurred, the state board shall notify the appropriate local board and the claimant and hold a hearing. If after the hearing the state board determines that benefits have been or are being fraudulently acquired, the state board shall seek action in a court.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 321 (H.B. 2400), Sec. 9, eff. September 1, 2007.

Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.17, eff. June 14, 2013.

Sec. 865.011. RECORDS AND REPORTS. (a) The executive director may at any reasonable time examine the records and accounts of local boards.

(b) The executive director shall require in a timely manner periodic reports from the local boards and shall prepare necessary forms for use by local boards.

(c) The executive director 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.

(d) The state board shall electronically submit a report to the governor, the lieutenant governor, the speaker of the house of representatives, the Legislative Budget Board, and the State Pension Review Board if:

(1) as a result of an event or action, there is a significant change to the actuarial valuation of the pension system's assets or liabilities, including the extent to which the system's liabilities are unfunded;

(2) there is any change to the contributions made to or benefits paid from the system; or

(3) an actuarial valuation must be corrected or repeated because of the use of erroneous information or assumptions used in the valuation.

(e) A report submitted under Subsection (d)(1) must include and consider the effect alternative contributions and benefit structures would have on the actuarial valuation of the system, including changes in the state's contribution under Section 865.015, as well as state funding of administrative expenses.

(f) The state board shall determine the meaning of "significant change" for purposes of Subsection (d)(1), which must include circumstances in which there is an increase in the time required to amortize the unfunded liabilities of the pension system to a period that exceeds 30 years, assuming a maximum state contribution under Section 865.015.

(g) A report required under Subsection (d) may be combined with any other report required by this chapter or other law.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.17, eff. June 14, 2013.

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) except as provided by Subsection (a-1), 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.

(a-1) If a participating department does not have a sufficient number of active members to serve on a local board under Subsection (a)(2), the other members of the local board, or if there are no other members of the local board, the governing body of the political subdivision of which the department is a part shall select one or more trustees to serve under that subdivision. A person selected under this subsection to serve as a trustee must be:

(1) a retiree of the pension system; or

(2) a beneficiary of the pension system who is the surviving spouse of a former member or retiree.

(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.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 291 (H.B. 1725), Sec. 1, eff. June 1, 2015.

Sec. 865.013. MONITORING OF CONTRIBUTION SUBMISSION. A local board shall monitor the timely submission of required contributions to the executive director.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.17, eff. June 14, 2013.

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, by wire transfer, or as an automated clearinghouse withdrawal (ACH debit) unless the executive director grants an exception based on the difficulty of a participating department's use of those payment methods. 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.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.18, eff. June 14, 2013.

Acts 2015, 84th Leg., R.S., Ch. 290 (H.B. 1707), Sec. 1, eff. September 1, 2015.

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.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

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.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

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 executive director 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.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.19, eff. June 14, 2013.

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 executive director and the state board shall certify the actuarial and financial soundness of the fund every two years with the assistance of a qualified actuary.

(c) An actuarial valuation conducted under this section must include:

(1) an analysis clearly shown in the valuation based on each of the following assumptions:

(A) no state contribution to the fund, including no state funding of administrative expenses; and

(B) a maximum state contribution to the fund, including state funding of administrative expenses; and

(2) the number of years required to amortize the unfunded actuarial liabilities of the pension system under each assumption under Subdivision (1).

(d) At least once every five years, the state board, with the assistance of the actuary, shall:

(1) audit the actuarial valuation required under this section; and

(2) conduct an actuarial experience study, the contents of which are determined by the state board in consultation with the actuary.

(e) The actuarial valuation and experience study required under Subsection (d) are not required to be conducted concurrently.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.20, eff. June 14, 2013.

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 executive director 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 executive director 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 executive director 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 executive director 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 executive director 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.

Added by Acts 2005, 79th Leg., Ch. 803 (S.B. 522), Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.21, eff. June 14, 2013.

Sec. 865.020. MEDICAL BOARD. (a) The state board shall designate a medical board composed of three physicians.

(b) To be eligible to serve as a member of the medical board, a physician must be licensed to practice medicine in the state and be of good standing in the medical profession. A physician who is eligible to participate in the pension system may not be a member of the medical board.

(c) The medical board shall:

(1) investigate essential statements and certificates made by or on behalf of a member of the pension system in connection with an application for disability retirement or, as requested by the executive director, with an application for an on-duty death benefit; and

(2) report in writing to the executive director its conclusions and recommendations on all matters referred to it.

(d) The medical board is not subject to subpoena regarding findings it makes in assisting the executive director under this section, and its members may not be held liable for any opinions, conclusions, or recommendations made under this section.

Added by Acts 2009, 81st Leg., R.S., Ch. 697 (H.B. 2751), Sec. 8, eff. September 1, 2009.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.22, eff. June 14, 2013.

Sec. 865.021. COMPLAINT FILES. (a) The pension system shall maintain a system to promptly and efficiently act on complaints filed with the system. The system shall maintain information about:

(1) parties to the complaint;

(2) the subject matter of the complaint;

(3) a summary of the results of the review or investigation of the complaint; and

(4) the disposition of the complaint.

(b) The pension system shall make information available describing its procedures for complaint investigation and resolution.

(c) The pension system shall periodically notify the complaint parties of the status of the complaint until final disposition.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1316 (S.B. 220), Sec. 1.23, eff. June 14, 2013.