. _-
THEATTORNEYGENERAL
OF TEXAS
Auwrxiw ?.I.Texan
GROVER SELLERS
-N
A1TORNEYG*NERAL
Honorable Bayne Satterfield, Commissioner
Office of Firemen's Pension Commissioner
P, 0. Box 1062
Austin, Texas
Dear Sir: Opinion No. O-6835
Re: Whether a fireman, who has reached
twenty years of service after
going In the Armed Forces, is
eligible to be granted a Service
Certificate in accordance with Sec.
6, Art. 6243e, Title 109, V.A.R.C.S.?
We have goup letter of September 9, 1946, asking for an
opinion from this department, based upon the following facts,
to-wit:
"A participating fireman served approximately
18 years in his fire department aa an active
fireman. Soon after completing the 18 years'
service he entered the armed service of our Nation.
While serving in the armed service he completed
his 20 gears and he is still in the armed service.
He has not been an active member of the fire
department since he completed his 18 years of
service. The question is whether he is ellglble
to be granted a Service Certificate in accordance
with the provisions of Section 6 of the Act--
Article 6243e. Applicant has not reached the age
of 55 years. He entered the armed service during
the War and National Emergency."
Section 6 of Article 6243e, V.A,R.C,S., to~which you
refer, Acts of 1945, 49th Legislature, p- 58, Ch. 4.0,Sec. 1,
reads as follows:
"On and after the 1st day of Ap~ll, A.D. 1939,
any person who has been duly appointed and enrolled,
and who has attained the age of fifty-five (55)
years and who has served actively for a period of
twenty (20) years in some regularly organized fire
department in any city OP town in this state now
within OP that may come within the provisions of
this Act, in any rank, whether as wholly paid, part
paid OP volunteer firemen, shall be entitled to be
Hon. Bayne Satterfield, pnge 2 o-6835
retired from such service or department and shall
be entltled to be paid from the Firemen's Relief
and Retirement Fund of that city or town, a monthly
pension equal to one-half of hi'saverage monthly
salary not to exceed a maximum of One Hundred
Dollars ($100.00) per month; such average monthly
salary to be baaed on the monthly average of his
salary for the five (5) year peri~odpreceding
the date of such retirement; provided further, that
If his average monthly salary is FI,ftyDollars
($50.00) or less per month or If a volunteer fire-
man with no salary, he shall be entitled to a
monthly pension or retirement allowance of Twenty-
five Dollars ($25.00). Notdlthstanding any other
provision of this Act, it is hereby speci~allypro-
vided that any eligible and ualifled fireman who
shall have completed twenty 920) years of service
before reaching the age of fifty-five (55) years
may apply to the Board of Trustees for, and It
shall be the Board's duty to Issue a certificate
showing the completion of such service and showing
and certifying that such fireman, when reaching
the age of ffftg-five (55) years, will be entitled
to the retirement and other applicable benefits of
the Act; provided further, that when any fireman
shall have been Issued such certificate he shall,
when reaching retirement age, be entitled to all
the applicable benefits of the Act, even though he
shall not have been engaged in active service as a
fIreman after the isasuatwe of such certificate.
Provided further, that in order to participate In
the benefits authorized under this Act all persons
shall continue to pay into the Firemen's Relief
and Retirement Fund the amounts provlded for all
participants thereunder up to the time of their
retirement.'
Incldentally, this particular Section of said ArtLcle
6243e was construed in Opinion No. O-6583 by Judge Speer to you
on or about May 22, 1945, in the following language:
"This Section repeats verbatim Section 6 of Chapter
125, Acts of the Regular Session of the 45th Legislature,
and adds that portionof the above quotation which we
have underscored for conveni~encesake." (The Under-
scored portion being the last half of the Section
quoted beginning with "Notwithstanding any other pro-
vision," etc., and endIng with 'up to the time of
their retirement.“)
. -. r
Hon. Bayne Satterfield, page 3 0 -6835
"We think it la plain from the specific language
of the newly added matter to Section 6 that the Leg-
islature intended that any eligible and qualified
fireman, who shall have completed twenty years.of
service before reachlngthe age of fifty-five years,
would be entitled to the certificate showing such
service, whether such completion is before or after
the effective date of Senate Bill 89, provided it
is on or after the 1st day of Appil, A, D. 1939."
Section 21, of Article 6243e, on the computation of length
of aervioe, provides that:
:
"In computing the time or period for retirement
for length of service
^ as herein provided,-less
. than
one year out or aervlce or any time served in the
armed forces of the NatIon during war or National
emergency shall be construed as continuous service,
but if out more than one year and leas than five (-5)
years, credit shall be given for prior service, but'
zeF;tj.;n made fop the length of time out of service.
(underscoring ours)
As was said in this Department's Opfnion No- C-4625 to you
in July, 1942:
'It la OUP opinion that Section 21 of the Act (being
Sec. 16, Art, 6243e, Title LCg, as codified under Ver-
non's Annotated Revised Civil Statutes of the State of
Texas, Vol. 17, 1946 Cumulative Annual Pocket Edition)
under consideration does not distinguish the status of
a ffreman who resigned from one who takes a leave of
absence, Therefore, where a fireman resigned, or
secures a leave of absence for the purpose of entering
the armed forces of the Natton during war OP National
emergency and does so enter the armed forces, the time
he serves in the army durfng such period of war or
National emergency fa considered continuous service
for retFrement purposes."
In view of the cited pcrtlon of the Firemen's Relief and
Retirement Act, and the various opinions of this Department here-
tofore rendered on this and kindred phases of the questions
propounded by you and which we have quoted herein, we are of
the opinion that a fireman who has reached twenty (20) years
of service, after goin Into the armed forces, before reaching
the age of fifty-five 755) years, is eligible, under the facts
you give us, to be granted a Service Certificate as provided
under Article 6243e, and the Sections hereinabove set out.
Hon. Bayne Satterfleld, page 4 O-6835
Yours very truly,
ATTORNEY GENERAL OF TEXAS
By s/John L. Wroe
John Lo.Wroe
Assistant
JLW:LJ:wc
APPROVED NOV 1, 1946
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
Untitled Texas Attorney General Opinion
Combined Opinion