Warren G. Harding

Attorney General of Texas — Opinion.
November 13, 1979

MARK WHITE, Attorney General of Texas

Honorable Warren G. Harding State Treasurer P. O. Box 12608 Austin, Texas 78711

Re: Disposition of interest earned by time deposits by the Fire Fighters’ Relief and Retirement Fund.

Dear Mr. Harding:

You inquire about the disposition of interest earned from time deposits of the Fire Fighters’ Relief and Retirement Fund Account, assigned Fund No. 976 by the Comptroller. The retirement fund was established pursuant to article 6243e.3, V.T.C.S., to provide a pension system and death and disability benefits for volunteer fire fighters.

You wish to know whether the pro-rata depository interest earned from the time account deposits of Fund 976 should be placed in the General Fund pursuant to the provisions of article 2543d, V.T.C.S., or credited to Fund 976.

Article 2543d, V.T.C.S., provides in pertinent part:

Section 1. Interest received on account of time deposits of moneys in funds and accounts in the charge of the State Treasurer shall be allocated as follows: To each constitutional fund there shall be credited the pro rata portion of the interest received due to such fund. The remainder of the interest received, with the exception of that portion required by other statutes to be credited on a pro rata basis to protested tax payments, shall be credited to the General Revenue Fund. The interest received shall be allocated on a monthly basis.

Prior opinions of this office have determined that the interest on time deposits of trust funds should remain with the trust fund rather than being deposited in the General Fund pursuant to article 2543d, V.T.C.S. See Attorney General Opinions H-1040
(1977); M-468 (1969). We believe that the Fire Fighters’ Relief and Retirement Fund constitutes a trust fund. Funds in the Teacher Retirement and the Employees Retirement Systems have been held to be trust funds. Attorney General Opinion WW-565 (1959). The Fire Fighters’ Fund is administered by trustees. V.T.C.S. art. 6243e.3, §§ 20, 21. Finally, the statute under which it is established expressly provides that `[n]o portion of the corpus or income of the fund may be used for purposes other than the benefit of member fire fighters and their beneficiaries.’ Id. § 14(e). In our view, the interest earned from time account deposits of Fund 976 should be credited to the Fund rather than deposited pursuant to article 2543d, V.T.C.S.

SUMMARY
Interest earned from time deposits of the Fire Fighters’ Relief and Retirement Fund Account should be credited to the Fund rather than deposited pursuant to article 2543d, V.T.C.S.

Very truly yours,

Mark White Attorney General of Texas
John W. Fainter, Jr. First Assistant Attorney General
Ted L. Hartley Executive Assistant Attorney General
Prepared by Susan Garrison Assistant Attorney General