Untitled Texas Attorney General Opinion ( 1961 )

THEA~ORNEYGENERAL
OFTEAXAS
WILL WILSON
ATTORNEYO~NE-I.
March 22, 1961
Mrs. Marie Hudson
Firemen's Pension Commissioner
1010 State Office Building
Austin, Texas
Opinion No. WW-1066
Re: Authority of a Firemen's
Pension Board,to decrease
the pension of firemen who
have been retired at in-
Dear Mrs.,Hudson: creased amounts.
In your letter pertaining to the above subject,
you request the opinion of this office on the question of
whether the Board of ~Firemen's Relief and Retirement Fund
,Trustees of the City of Wichita Falls may decrease the pen-
sions of firemen who have been retired at increased monthly
payments allowed and voted into effect under the alternate
or selective benefit provisions of Section 6~,ofArticle
6243e, Vernon's Civil Statutes, which reads in part as follows:
"Sec.6. 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 any rank, whether as wholly
paid, art-paid or volunteer fireman, in
one (1P or more regularly organized fire
departments in any city or town in this
State having a po ulation of less than five
hundred thousand,7 500,000) according to the
last preceding Federal Census, which city
or town is now within or may come within
the provisions of this Act, shall be entitled
to be retired from such service or department
and shall be entitled to be paid from the
Firemen's Relief and Retirement Fund of that
city or town, a monthly pension equal to one
half (l/2) of his average monthly salary not
to exceed a maximum of One Hundred Dollars
($100) per month, except as hereinafter .pro-
vided; . . . Provided, further, that any
Mrs. Marie Hudson, Page 2 (WW-1066)
regularly organized 'full paid' fire de-
partment in any city or town in this State
now within or that may come within~the pro-
visions of this Act may, upon a majority
vote of said Board of Trustees, increase
the maximum pension to One Hundred and Fifty
Dollars ($150) per month. As amended Acts
1953, 53rd Leg., p. 352, ch. 82, 5 1; Acts
1957, 55th Leg., p. 617, ch. 275, # 2.'s
Your letter ,reads in part as follows:
"In an effort to protect and preserve their
pension fund the Board has joined with the Fire
Department in voting out certain alternative
increased benefits. Now the Board wants
to know if it is within'tieir authority to de-
crease the pension of persons who have already
beenretired at the increased amounts.
"It has been the opinion of this office
that once a manis granted benefits at the
rate in effect at the time of his retirement,
that benefit is set - if increased benefits
are voted into effect the persons on pension
do not have their ,pensioninc,reasedand if the
benefits were lowered then the persons onpen-
sion would not be lowered. . . ."
The claim of ,a vested right of a pensioner to the
continuance of monthly pension payments at the statutory rate
in effect at the time of his retirement was denied in the case
of City of Dallas v. Trammel, 129 Tex. 150, lOl,S.W.2d 1009,
(1937). The Court held that such rate was subject to change
by subsequent legislation; that a pensioner's right to continue
to receive monthly payments from the pension fund after retire-
ment was predicated upon anticipated continuance of the then
existing,laws and subordinate to the right of the Legislature
to abolish the system or diminish its benefits. It further held
that a contribution to the pension fund under that law did not
give the pensioner a vested right in the pension fund, which
was a public fund subject to control of the Legislature.
Mrs. Marie Hudson, Page 3 (WW-1066
Since a pensioner, under the Trammel case, has
no vested right to future increased payments, the question
to be resolved,is whether the Board of Trustees, after exer-
cising the discretionary authority delegated by the Legislature
by increasing the maximum pension to $150.00, hasthe power
to subsequently decrease that amount.
The case of Board of Councilmen v. Brawner, 37 S.W.
950 (Ky. Ct. App. 1896] cited in our previous letter to you is
also in ,point on the current question. The Court inthat case
held that a municipal legislature might abolish a board of
public works which it had established under discretionary power
conferred by a statute that made no reference to the power to
abolish. The Court on rehearing said,the following in a Per
Curiam opinion reported in 38 S.W. 497:
"The petition for rehearing in this
case is based upon the theory.that there
is something analogous to contract right
in the tenure by which the members of the
board of public works of Frankfort hold
their offices, There is no such analogy.
They do hold, as do persons holding offices
created by the legislature, subject to the
power of the body which created the office
to abolish it. In each case the power is a
delegated power. The municipal legislature
derives its power from the legislature of
the state, and the general assembly derives
its power from the constitution. In each
case the power to create implies and carries
with it the power to abolish. The general
assembly is empowered by section 107 of the
constitution to create county and district
offices for a term not exceeding four years.
But it will hardly be contended that, having
created an office with a term of four years,
the general assembly may not abolish it in
two. Nor is there analogy between the case
at bar and.the illustration of counsel of an
agency to make a lease for a specified term.
The principal, through his agent, binds him-
self by a contract. There is no contract
right to a statutory office. + . .'I
Mrs. Marie Hudson, Page 4 (W&1066)
And in.the case of Wright v. City of Florence, 93 S.E.2d 215,
(S.C. Sup. 1956) the Court upheld the validity of a city
ordinance abolishing a Civil Service Commission oreviouslv
set up by ordinance under a statute permitting the establish-
ment of such a system, but which was silent as to the power to
abolish.
Section 3 of Article 6243e, setting forth the compo-
sition and powers of the Board of Trustees, provides that the
Board is to "receive, handle and control, manage and disburse
such fund for the respective city or town and as such Board
shall have the power and authority to hear and determine all
applications for ~retirement, claims for disability, either ,par-
tial or total, and to designate the beneficiaries or persons
entitled to participate therein or therefrom as hereinafter
directed. . ." (Emphasis supplied)
In the interpretation of any statute, "the aim and
object of construction is to ascertain and enforce the legis-
lative intent, . . o . When the intent is plainly expressed
in the language of a statute it must be given effect without
attempting,to construe or interpret~the law. On the other
hand when it is necessary to construe an act in order to deter-
mine its proper meaning, it is settled by a host of decisions
that the court should first endeavor to ascertain the legis-
~lative intent, from a,general view of the whole enactment."
39 Tex. Jur. 167, 168, Statutes, Sec. 90. It is further stated
in Volume 39 of Texas Jurisprudence, at page 257: "According
to the above principles of interpretation, an amendment will
be construed and harmonized with the Act . e 0 to which it is
added, and of which it forms a part. The court may look ti
the body of the amendatory act, its title and emergency clause,
the existing facts or conditions at the time of the amendment,
and the body of the act amended."
The emergency clause of the amendment enabling the
Board of Trustees to increa;le;he maximum pension to $150.00
reads in part as follows: . 4. The fact that Boards of
Trustees in many cities and towns under the Firemen?s Relief
and Retirement Fund desire to increase the monthly pensions
of firemen under the Act, and the fact that all the present
funds are not being used by the Board of Trustees, and the
further fact that there are a large number of needy fire-
men who have served the public well and fulfilled all of the
requirements to obtain such pension and such pension is in-
adequate for a living wage, create an emergency . a .I1 Acts
53rd,Leg. R.S. 19.53,ch. 82, p. 354. When read in conjunction
with the general provisions of Section 3 of Article 6243e
Mrs. Marie Hudson, Page 5 (W-1066)
quoted above, it appears that the Legislature intended to vest
the Board of Trustees with discretion to control, manage and
disburse such fund, with respect to the alternate benefits,
under such conditions as current circumstances may justify,
and that the Board may, by majority vote, decrease the alternate
benefit pensions of those retired at the increased rate.
SUMMARY
The Board of Firemen's Relief and Retirement
Fund Trustees of the City of Wichita Falls,
Texas, may decrease the pensions of firemen
who have been retired at increased monthly
payments allowed and voted into effect under
the alternate or selective benefit provision
of Section 6 of Article 6243e, Vernon's Civil
Statutes.
Yours very truly,
WILL WILSON
Attorney General of Texas
By'*&'-
Dudley D. McCalla
Assistant
DDM:hmc
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Martin De Stefeno
Thomas Burrus
Maston Courtney
Lawrence Hargrove
REVIEWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbitt