Untitled Texas Attorney General Opinion ( 1971 )

NE GENEBAIL
OF EXAS
Hon. James U. Cross Opinion Ho. M-083
Executive Director
Parks and Wildlife Department Re: Eligibility of an indi-
John H. Reagan Building vldual for retirement as
Austin, Texas 78701, a "commissioned peace
officer' pursuant to
Article 6228a(5)(A),
Vernon's Civil Statutes,
Dear Hr. Cross: under the facts presented.
Your recent letter to this office concerning the ref-
erenced matter poses'the question of the ellgiblllty of Mr.
Robert ff.Mauermann, presently Dgputy Executive Director of xour
Department, for retirement as a commissioned peace officer,
Subsection 1 of Article .6228a(5)(A),Vernon's Civil
Statutes, which establishes the Employees Retirement System of
Texas, provides, In part, as ~follows:
'It is provided further, however, that a
member (of the System) who has completed ten
(10) or more years of Creditable service a8a
commissioned peace officer engaged In c~rimlnal-
law enforcement activities of th De t t of
Atbli S afety, Uame and Fish Coe&ss% TEzw the
ParksCand Wildlife Department), ,Llquor Control
Board, or as a custodial employee of the State
Board of Corrections of the State of Texas and
who has attained the age of fifty-five (55) years
shall ,be eligible for retirement." (Emphasis
added.)
The foregoing provision constitutes an exception to the other pro-
visions of the statute, and allows commissioned peace officers to
obtain retirement benefits at the age of 55 rather than the normal
retirement age of 60.
The materials submitted with your letter indicate the
following facts concerning Mr. Mauermann: that he is now 56 years
of age; that the records in his personnel file indicate that he has
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Hon. James U. Cross, page 2 (M-883)
held various positions with your Department since 1949 as a
wildlife biologist, assistant director of publications, regional
director, and deputy director; and that his status card indicates
that he was originally employed as a game warden in 1937, assigned
as an assistant game manager in 1938, and as a field biologist in
1940.
It is beyond dispute that game wardens are commissioned
peace officers engaged in criminal law enforcement.
Articles 905, 906, and 978f+c, Texas Penal Code; Article
See %%is
Vernon's Civil Statutes; Attorney Qeneral's Opinions No. O-693&
(1946)~and No. V-22 (1947).
Copies of documents attahed to your letter indicate
that Mr. Mauermann was commissioned a State game warden on November
12, 1937, and that he was also appointed and qualified a game and
fish warden on August 31,,1949. Neither of his foregoing commissions
as a game warden has been revoked. Both are still in full force and
effect, and Mr. Hauermann has held such for longer than the requisite
ten-year statutory period for retirement at the age of 55.
The Issue posed by your,letter is one of first Impression
in this State. While It Is true that pension statutes are to be
liberally construed (67 C.J.S. 331, Officers, Sec. 92;
Dlst. Retirement Board of Los Angeles Schools, 132 P.2d
1942) d t b 11 th L lit Intended that the words
'ten [lo","or"rn","e
yEarE?f cEed%abslt %%ce as a commissioned
peace officer engaged in criminal law enforcement" contemplates
the mere possession of a commission naming an individual as a
peace officer is alone sufficient to establish such individual as
a commissioned peaceofficer
See Robinson v. Territory, 85
Your request therefore presents primarily a fact question
to be determined by you and which this office Is without authority to
determine. Attorney General Opinion M-187 (1968). If the records
in your office support a certification by'you that Mr. Mauermann has
primarily and substantially engaged in criminal law enforcement
activities in any capacity as a commissioned peace officer during
each year of the required ten or more years, he wi.11~be entitled to
retirement benefits at the age of 55 rather than the normal retirement
age of 60. Otherwise, Mr. Mauermann's retirement benefits will be
actuarially reduced.
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Hon. James U. Cross, page 3 (M-883)
SUMMARY
Whether an individual has primarily engaged in
criminal law enforcement activities of the Parks
and Wild life Department during each year of the re-
quired period of 10 or more years Is primarily a
fact question to be determined by the Parks and
Wildlife Department and which this office
6228a( fi)&?th-
out authority to determine.~..,gArt.
Very truly
General of Texas
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Glenn Brown
Sam Jones
Gord,onCass
A. Jo.Gallerano
MEALE F. GRIFFIN .,
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant
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