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GOVERNMENT CODE

TITLE 8. PUBLIC RETIREMENT SYSTEMS

SUBTITLE H. TEXAS EMERGENCY SERVICES RETIREMENT SYSTEM

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.

Added by Acts 2005, 79th Leg., Ch.

803, Sec. 1, eff. September 1, 2005.

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.

Added by Acts 2005, 79th Leg., Ch.

803, Sec. 1, eff. September 1, 2005.

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.

Added by Acts 2005, 79th Leg., Ch.

803, Sec. 1, eff. September 1, 2005.

Sec. 864.004. DISABILITY RETIREMENT BENEFITS. (a) A member is

entitled to disability retirement benefits from the pension

system only if a local board determines that the member became

disabled during the performance of emergency service duties and

is unable to return to work at the member's regular occupation

or, if the member is a student, is unable to return to the

member's scholastic studies. A disabled member must, at the time

of disability, elect between a service retirement annuity or

disability retirement benefits, if eligible for both.

(b) A disabled member described by Subsection (a) who does not

elect to receive a service retirement annuity is entitled to

disability retirement benefits 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.

form of a continuing annuity, computed in the manner described by

Subsection (b), a person who is determined by a local board to be

temporarily disabled must:

(1) apply to the medical board appointed by the state board; and

(2) not later than the first anniversary of the date the person

was determined to be temporarily disabled, be certified by the

medical board as permanently disabled for the performance of the

duties of the person's regular occupation.

Added by Acts 2005, 79th Leg., Ch.

803, Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

321, Sec. 4, eff. September 1, 2007.

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 improvement in condition, the

local board, after notice and a hearing, may adopt an order to

terminate payments. The local board shall send a copy of each

order adopted under this subsection to the commissioner.

(b) Temporary disability benefits cease if the recipient returns

to work at the person's regular occupation, resumes scholastic

studies, or performs emergency service duties for any agency, or

if the local board adopts an order under Subsection (d).

cease on a date at the expiration of a period, not to exceed one

year, determined to be the likely duration of the disability by a

physician in a written statement to the pension system.

(d) If the local board has reason to believe that a ground for

termination of temporary disability benefits exists, the local

board may set a date for a hearing on the matter. The local

board, after notice and a hearing, may adopt an order terminating

temporary disability benefits if the local board determines that

a ground for termination exists. The local board may not adopt

an order under this subsection on the basis of a physician's

previously submitted statement as to the likely duration of the

disability if the local board determines, after a hearing, that

the disability continues. The local board shall send a copy of

each order adopted under this subsection to the commissioner.

(e) Payments of a continuing disability retirement annuity to a

retiree certified by the medical board as permanently disabled

under Section 864.004(c) cease if the retiree returns to work at

the retiree's regular employment or performs emergency service

duties.

(f) If the commissioner has reason to believe that a ground for

termination of a continuing disability retirement annuity exists,

the commissioner shall set a date for a hearing on continuation

or termination of the annuity. The commissioner, after notice

and a hearing, shall adopt an order terminating the continuing

disability retirement annuity if the commissioner determines that

a ground for termination exists.

(g) Except as provided by this subsection, a continuing

disability retirement annuity terminates on the fifth anniversary

of the date payment of the annuity begins. To continue receiving

payments of a continuing disability retirement annuity after the

fifth anniversary, the retiree must be recertified by the medical

board as being permanently disabled for the performance of the

duties of any occupation for which the person is reasonably

suited by education, training, and experience and that could

reasonably be expected to provide the person with at least 75

percent of the salary the person was earning at the time the

disability occurred. Rejection of a suitable offer of employment

as described in this subsection is conclusive evidence for

purposes of this subtitle that the person is no longer eligible

to receive disability retirement benefits.

(h) 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 timely provide

requested information is a ground for terminating benefits.

Added by Acts 2005, 79th Leg., Ch.

803, Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

321, Sec. 4, eff. September 1, 2007.

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 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.

(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.

Added by Acts 2005, 79th Leg., Ch.

803, Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

321, Sec. 5, eff. September 1, 2007.

Sec. 864.007. MEMBER NONSERVICE DEATH BENEFIT. (a) The state

board by rule may provide one or more beneficiaries of a deceased

member whose death did not result from the performance of

emergency service duties a benefit, which may be a lump-sum

amount or an annuity.

(b) A rule adopted under this section must include the type of

eligible recipient of the benefit, including any service or age

requirement, and the method of calculating the amount of the

benefit. A rule may include any other terms the board considers

appropriate.

Added by Acts 2005, 79th Leg., Ch.

803, Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

321, Sec. 6, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

697, Sec. 6, eff. September 1, 2009.

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.

Added by Acts 2005, 79th Leg., Ch.

803, Sec. 1, eff. September 1, 2005.

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.

Added by Acts 2005, 79th Leg., Ch.

803, Sec. 1, eff. September 1, 2005.

Sec. 864.011. FIRST PAYMENT OF RETIREMENT OR DEATH BENEFIT

ANNUITY. The cashing or depositing of the first payment of a

service retirement annuity, disability retirement annuity, or

death benefit annuity by a person entitled to it, or the receipt

by a financial institution for credit to that person's account of

a transfer of funds by the pension system through electronic

means, is considered acceptance of the amount of the annuity and

of the amount of service of the person on whose service the

annuity is based.

Added by Acts 2005, 79th Leg., Ch.

803, Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

321, Sec. 6, eff. September 1, 2007.

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.

Added by Acts 2005, 79th Leg., Ch.

803, Sec. 1, eff. September 1, 2005.

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.

Added by Acts 2005, 79th Leg., Ch.

803, Sec. 1, eff. September 1, 2005.

Sec. 864.0135. OPTIONAL ANNUITY INCREASE OR SUPPLEMENTAL

PAYMENTS. (a) The state board by rule may authorize a

participating department to:

(1) make one or more supplemental payments to retirees and other

beneficiaries of the pension system; or

(2) provide an increase in the amount of annuities paid to

retirees and other beneficiaries of the pension system.

(b) A participating department that elects an option under a

rule adopted under this section shall fund all increased benefits

that are provided to retirees and other beneficiaries of the

department under the option.

Added by Acts 2007, 80th Leg., R.S., Ch.

321, Sec. 7, eff. September 1, 2007.

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.

Added by Acts 2005, 79th Leg., Ch.

803, Sec. 1, eff. September 1, 2005.

Sec. 864.015. BENEFICIARY CAUSING DEATH OF MEMBER OR ANNUITANT.

(a) A benefit payable on the death of a member or annuitant may

not be paid to a person convicted of causing that death but

instead is payable as if the convicted person had predeceased the

decedent.

(b) The pension system is not required to change the recipient

of benefits under this section unless it receives actual notice

of the conviction of a beneficiary. The system may delay payment

of a benefit payable on the death of a member or annuitant

pending the results of a criminal investigation and of legal

proceedings relating to the cause of death.

convicted person before the date the system receives actual

notice of the conviction, and any payment made before that date

is a complete discharge of the system's obligation with regard to

that benefit payment. The convicted person holds all payments

received in constructive trust for the rightful recipient.

(d) For the purposes of this section, a person has been

convicted of causing the death of a member or annuitant if the

person:

(1) pleads guilty or nolo contendere to, or is found guilty by a

court of, an offense at the trial of which it is established that

the person's intentional, knowing, or reckless act or omission

resulted in the death of a person who was a member or annuitant,

regardless of whether sentence is imposed or probated; and

(2) has no appeal of the conviction pending and the time

provided for appeal has expired.

Added by Acts 2009, 81st Leg., R.S., Ch.

697, Sec. 7, eff. September 1, 2009.

Sec. 864.016. CLAIM AND APPEAL PROCEDURE. (a) A claim for

disability retirement benefits or a lump-sum death benefit must

be filed with the local board. A claim for service retirement

benefits must be filed with the commissioner, who shall forward

the claim to the appropriate local board for a hearing. A claim

for a death benefit annuity must be filed with the commissioner,

who shall make a determination of the merits of the claim and

issue a decision to the claimant. On receiving a claim under

this section, 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. If a local board does not

determine a claim for service retirement benefits and file its

determination with the commissioner before the 16th day after the

date the local board receives the claim, the commissioner may

determine the merits of the claim.

(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.

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 of a local board decision 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.

Added by Acts 2005, 79th Leg., Ch.

803, Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

321, Sec. 8, eff. September 1, 2007.