Untitled Texas Attorney General Opinion

May 13, 1970 Mrs. PlarieWinters Opinion No. M- 630 Firemen's Pension Commissioner 1010 Sam Houston Building Re: Way a former member of the Austin, Texas 78701 Firemen's Relief and Re- tirement Fund who withdrew his contributionsand can- celled all hla aervlce, return and be eligible to membership in the Fund after he has passed the age of 35 years~(Art. Dear Mrs. Winters: 6243e, Sec. lOA-2, V.C.S.). In your letter requestingan opinion from this office, you submit the following facts which we quote, In part, as follows: "The Fire Department of Brownwood, Texas, has re-hired a fireman who was in the Fire Department but resigned and withdrew his con- tributions and signed a cow of our standard form 35, . . . IS . . . "It Is the policy of all our other Pension Boards, in which this office concurs, that when a fireman resigns and withdraws his contributions he cancels out all prior service, since he Is not allowed credit nor Is there a provision fo$ repay- ment of contributionsso withdrawn. . . . In addition, you have informed us that the Individualwho la the subject of your Inquiry orlglnally jolned the City of Brownwood Fire Department at the age of 21 on June 10, 1955. He served continuouslyas a fireman until he resigned from the Department on March 1, 1965. Thereafter,he was Fe-hired by the fire depart- ment on March 1, 1966, and he again resigned on August 5, 1968. On January 12, 1970, he was re-hired as a fireman with the department. -3014- Mrs. Marie Winters, page 2 (M-630) With regard to these facts, you ask the following question: II . . . May we have your official ruling aa to whether or not a man may withdraw his con- tributions,cancel all service and again return to the Department even though he la over 35. The provisions of the Firemen's Relief and Retirement Fund Act most pertlnent:,inanswering your question are contained In Section lOA-2(f), Article 6243e, Vernon'? Civil Statutes. The provisions of this Section are applicable to cities of leaa than 185,000 population and became effective August 28, 1967. Section lOA-2(f) provides, In part, as follows: "Each person who shall hereafter become a fireman In any city which haa a Firemen's Relief and Retirement Fund to which he 1s eligible for membership, ahall become a member of such Fund as a condition of his appointment,and shall by acceptance of such position agree to make and shall make contributionsrequired under this Act of members of such Fund, and shall participate In the benefits of membership In such Fund as pro- vided in this Act, 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 th$ time he first enters service as a fireman; . . . Section lOE(d), Article 6243e, Vernon's Civil Statutes, Is applicable to cities having a population In excess of 900,000 population. Other than the ellglbllltyfor membership requirement specifying the age of thirty rather than thirty-fiveas the maximum age at the time of first entry Into service as a fireman, the pro- visions of Section lOE(d) are Identicalwith those of Section lOA- (f). The facts submitted in connectionwith Attorney ffeneral's Opinion W-24 (1967) concerned a fireman who had prior service in a fire department but who had resigned and after an absence of more than one year was again employed with the ,department. At the time of his re-employmenthe was 31 years old. In construing Section lOE(d) In view of these facts, the opinion holds as follows: II The statute, by Its terms, dfd not, and dois'n&, apply retroactively,but fs directed -3015- I . Mrs. Marie WInterSI, page 3 (M-630) at persons who first entered service after the effective date me aot. hrenote from the fact situation submittedby you that the fireman In question has had an InterruptionIn his service of something over one year. Thus, his re-entry Into the service does not constitute a first ' entry Into s,ervice. The words of the statute are clear, and there Is nothing to Indicate a contrary construction. You are therefore ad- vised that It Is the opinion of this office that the said fireman la fully entitled to participate in the FIremen's Relief and Re- tirement Fund asna regular member of his city's Fire Department. It Is our opinion that the Interpretationcontained In Attorney General's Opinion M-24 (1967) of the phrase "first entered as that phrase Is used In Section lOE(f), la controlling as to the Interpretationwe must give the aame phrase aa It appears In Section lOA-2(f). On the occasion of each of his two resignationsfrom the Brownwood Fire Department,t,hesubject Individualwas authorized to withdraw his contributionsto the Pension Fund under the provisions of Section lOA-2(f), Article 6243e, Vernon's Clvll Statutes, and the holdings of Attorney Oeneral's Opinions C-153 (1963), C-572 (1965) and Board of Firemen's Relief and Retirement Fund Trustees of Amar'illo,et al. v. Parks, et a1 ., 424 S.W.2d 59 (Tex.Clv.App. 968 , n.w. . . 'I 12, 1970, the d.atehe was re-hired by the Brownwood Fire Department, he was authorized to receive re- tirement credit for his prior service under the authority of Sec- tion 21, Article 6243e, Vernon's Civil Statutes. Section 21 pro- vides, In part, as follows: "Sec. 21. In computing the time or period for retirement for lenath of service aa herein provided, . . . If out-more than one (1) year and less than fl\re (5) years, credit shall,be but deduction made t of service. . . . Any firemen-joiningany regularly organized fire department coming within the provisions of this Act after the effective date hereof shall be entitled to benefits hereunder after he has filed a statementthat he desires to participate In the benefits from the Firemen's Relief and Retirement Fund, as provided In -3016- . . Mrs. Marie Winters, page 4 Section 10 or Section 1OB of this Act, but he shall not be entitled to any disability . . benefits . . on account of any slcicnessor InJury recelveo before the statementwas filed.' (Emphasis added.) It Is noted that while Section 21 provides for'recelvlng retirement credit 'forprevious service, It contains no express provisionswhich would require an lnd.lvldual at the tlme'of his re-employmentas a fireman to refund contributionspreviously withdrawn by him from the Fund at the time he again becomes a participatingmember of the clty,'sFiremen's Relief zindRetirement Fund. He need,not claim such previous service,for retirement credit to become eligible as a member of the fund for the future. It Is our opinion that an Individual'sright to retire- ment credit for previous service, however, Is encumbered with a neceaaarLly implied obligationto refund all contributionspreviously withdrawn for such service,clalmed, since all pension benefits pro- vided for under the provisions,ofArticle 6243e are based on total amount of contributionsmade during the total period of the firemen's active service. A contrary constructionof Section 21 would lead to har,dshlp,Injustice,and serious consequences,undermlhlngthen financial basis of the entire firemen's pension system. This would result In unjust enrichment and be an unreasonableconstruction. 53 Tex.Jur.2d 243-246, Statutes, § 1.65 and 166. SUMMARY An Individualwho was re-hired dy ,the. Brownwood Fire Department on January 12, 1970, was entl%led at that time to become a participating member of that city's Relief and Retirement Fund though he was over 35 years old. However, for him to be entitled to retirement credit for previous service, he must refund all contributionsmade by him to the Pension Fund which he had previously withdrawn for such service claimed at the times of his previous resignationsfrom the Department. truly yours, k&e C. MARTIN ney General of Texas Prepared by Ivan R, Wllllams, Jr. Assistant Attorney General -3017- ‘ . Mrs. Marie Winters, page 5 (M-630) APPROVED: OPINION COMMITTEE Kerns Taylor, Chalrman~ W. E. Allen, Acting Co-Chairman Alan Minter James McCoy Dan Green Tom Sedberry ALFRED WALKER Executive Assistant MJZADEF. GRIFFIN Staff Legal Assistant NOLA WRITE First Assistant -3018-