THE ATTORNEY GENERAL
OFTEXAS
AUSTIN. TEXAS 78711
CEAWFORD c. MARTIN
*T-rORN&Y CaENERAL
February 15, 1967
Mrs. Marie Hudson Winters' Opinion No. M-24
Firemen's Pension Commissioner
1010 Sam Houston State Office Bldg.
- Re: Whether a fireman is
~Austln,Texas 78701 entitled to participate
In the Firemen's Re-
lief and Retirement
Fund under the stated
pear Mrs. Winters: facts.
You have requested the opinion of this office regard-
lng the above question, and in this connection you have submitted
the following facts:
'Houston has a fireman who resigned from
the Fire Bepartment Augusti 19, 1965. He re-
entered the Houston Fire Department October
12, 1966, an absence of more than one year.
This fireman first entered the Houston Fire
Department November 8, 1955,. At that time
he was 31 years of age.'
In determining the pro er answer to your question, we
must first look to Section lOE(dP , Article 6243e, Vernon's
Civil Statutes, which reads, In part, as follows:
"Each person who shall hereafter become
a fireman in any such city which has a Flre-
men's Relief and Retirement Fund in which he Is
eligible for membership, shall 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 provided In this Act;
however, that no person shall be eligl%Fi=
e o
membership in any such Fund who is more than
thirty (30) years of age at the time he first
enters service as a fireman; and provided fUr-
tier, that any such person who enters service
- 103 -
Mrs. Marie Hudson Winters, page 2 (~-24)
as a fireman may be denied or excused from
membership in the Fund if the Board of Trustees
of the Fund d.etermlnesthat such person is not
of sound health. . . ." (Emphasis added.)
The above'Sectlonwas enacted in 1963, and amended in
1965. At the time of the subject fireman's initial entry Into
service, there was no age limitationfor participationin the
Firemen's Relief and Retirement Fund. In 1963 the fireman In
question was a fu1l.yparticipatingmember of the Firemen's
Relief and Retirement Fund. The statute, by Its terms, did
not, and does not, apply retroactively,but is directed at
persons who first entered service after the effective date of
the act. Wendte frame 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
doesnot constitutea first entry into service. The words of
the statute are clear, and there Is nothing to Indicate a con-
trary construction. You are therefore advised that it is the
opinion of thls'officethat the said fireman la fully entitled
to participate in the Firemen's Relief and Retirement Fund as a
regular member of his city's Fire Department.
SUMMARY
Under the submitted facts, Article 6243e, Sec-
tion lOE(d), V.C.S. does not bar the fireman In
question from participationin the Firemen's
Relief and Retirement Fund of his city's Fire
Department.
truly yours,
y General of Texas
Prepared by Malcolm L. &ulck
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Ceppert, Co-Chairman
John Reeves
Z. T. Fortescue
Alan Minter
Dyer Moore
STAFF LECAL ASSISTANT
A. J. Carubbi, Jr. - 104 -