Untitled Texas Attorney General Opinion

. _- 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