Untitled Texas Attorney General Opinion ( 1958 )

August 12, 1958
Mrs. Marie Hudson Opinion No. NW-491
Firemen's Pension Commissioner
702 Tribune Building Re: Eligibility of a
Austin, Texas fireman who was in
the Military Service,
to File Statement of
Intention to claim
Dear Mrs. Hudson: Prior Service Credits.
Your request for an opinion reads in part as follows:
"Section 10-B of the Fireman's Pension
Law went into effect May 22, 1957. Firemen
in fully paid Departments were given a 60
day period in which to file a Statement of
Intention to Pay on Prior Service. After
payment was made the Fireman would then be
entitled to count service on which he had
not previously contributed. The Houston
Pension Board has extended this privilege
to a Fireman who was in military- service,
through no fault of his own, during the
60 day period and had no possible way of
knowing about the 60 day time limit or of
securing forms on which to file his statement."
Section 10-B of the Fireman's Pension Law, referred to
in your letter, was added by House Bill 68, Acts of the 55th
Legislature,.Regular Session 1957, Chapter 275, Page 617.
The Section became effective May 22, 1957. (Article 6242e,
Vernon's Civil Statutes.)
The pertinent part of Section 10-B is as follows:
"Sec. 10B. Any fireman who is a member of
a regularly organized 'full paid' fire department
having a Relief and Retirement Fund and who is not
participating in such fund, or who is participating
but has failed to participate in such fund during
some period of his service as a fireman after
April 9, 1937, and who desires himself or his
beneficiaries to participate in such fund or the
benefits therefrom with full credit under this
Mrs. Marie Hudson, page 2, Opinion No. WW-491
Act for all of such fireman's service as a fireman,
shall, within sixty (60) days after this amending
section of this Act takes effect, file with the Sec-
r~etary-Treasurerof the Board of Firemen's Relief and
Retirement Fund Trustees of such fireman's city or
town a statement in writing under oath that he desires
to participate in the benefits from such fund with
full credit for all of his service as a fireman and
giving the name and relationship of his then actual
dependents, and he shall therein authorize said
city or town or the governing body thereof to thence-
forth deduct not less than one per centum [g% nor
more than seven and one-half per centum (7% ), the
exact amount as determined or to be determined by the
vote of the fire department of which such person is
a member, from his salary or compensation;. . .'
The question we are called upon to decide is whether
that part of Section 10-B which says "shall within 60 days
after this amending section of this Act takes effect, file
with the Secretary-Treasurer of the Board of Firemen's Relief
and Retirement Fund Trustees of such fireman's city or town a
statement in writing under oath that he desires to participate
in the benefits from such fund. . ." is mandatory or directory.
The word "shall" has a mandatory implication, but it is
not always so used or construed. The courts have held that
the Fireman's and Policeman's Pension Act should be liberally
and not technically construed. In the case of Davis v.
Peters, Tex. Civ. App., 224 S.W.2d 490, writ refused, the
Court said:
"'The purpose of the Act is to provide a
pension plan for the type of city employee named.
This purpose should not be defeated by a narrow and
technical construction of the Act. On the contrary,
a liberal broad interpretation of the Act should be
indulged to accomplish the end sought to be attained.'"
The Supreme Court of this State has laid down a salutary
rule in this connection which it is our duty to follow. The
Court in the case of Markowsky v. Newman, 134 Tex. 440, 136
S.W.2d 813, quoted with approval from Sutherland's Statutory
Construction as follows:
"'Those directions which are not of the
essence of the thing to be done, but which are
given with a view merely to the proper, orderly
and prompt conduct of the business, and by the
- -
Mrs. Marie Hudson, page 3, Opinion No. WW-491
failure to obey the rights of those interested
will not be prejdbced, are not commonly to be
regarded as mandatory; and if the act is performed,
but not in the time or in the precise mode indi-
cated, it will still be sufficient, if that which
is done accomplishes the substantial purpose of the
statute.'"
In a quite recent case by the Supreme Court'Chisholm
v. Bewley Mills Tex. p. 287 S.W.2d 943, the
Court had occasion to consider the Gse of the word "shall"
in connection with the time of performance of an act and
stated a rule of construction which we think should govern
in this matter. In this case, the Court said:
II. . . Provisions which are not of the essence of
the thing to be done, but which are included for
the purpose of promoting the proper, orderly and
prompt conduct of business, are not generally re- .
garded as mandatory. If the statute directs,
authorizes or commands an act to be done within
a certain time, the absence of words restraining
the doing thereof afterwards or stating the conse-
quences of failure to act within the time specified,
may be considered as a circumstance tending to
support a directory construction. See Thomas v.
Groebl, 147 Tex. 70, 212 S.W.2d 625; Markowsky V.
Newman, 134 Tex. 440, 136 S.W.2d 808; Sutherland,
Statutory Construction, 3rd Ed. 1943, Vol. 3 p. 95,
Sec. 5813 et seq.; 82 C.J.S., Statutes, 3 376 et seq.,
p. 869."
We do not find in this statute any restraining language
such as "and not thereafter" or ' shall forfeit the right to
prior service." We think of no rights of other firemen that
would be impaired by a ruling that this statute should be
construed as directory rather than mandatory. The facts
reveal that the fireman has filed with the Firemen's
Pension Board in Houston his written intention to comply
with the statute and the Board has accepted his statement.
We should not hold this to be a nullity under the facts
presented by you unless the statute requires it. The
fireman was in military service and we shall assume that
he acted with due diligence in filing his statement with
the Pension Board after becoming aware of the passage of
Section 10-B of the statute. The acceptance by the Pension
Board of the belated filing would at least imply this. As
stated by the Court in this case of Markowsky v. Newman,
134 Tex. 440, 136 S.W.2d 813:
. .
.
Mrs. Marie Hudson, page 4, Opinion No. WW-491
II
if the act is performed, but not in the
tim;!or in the precise mode indicated, it will
still be sufficient, if that which is done
accomplishes the substantial purpose of the
statute."
This explicit language of the Court justifies the
conclusion we have reached that this fireman has suffi-
ciently complied with the statute in regard to his
prior service record, and you are accordingly so advised.
SUMMAR-Y
The 60 day period specified in Section 10-B
of the Firemen's Pension Law, Acl;sof the 55th
Legislature, Regular Session: 1357 (Article 6242e,
Vernon's Civil Statutes) should be ,zonstruedas
directory and not mandatory, and ,?hefiling of such
written statement after the expir,aC.ion
of the 60 day
period is sufficient if done within a reasonable~
time after becoming aware of ?.heeffective date of
the Act.
VCY truly -yours,
WILL WILSON
Attorney iisieralof Texas
LPL:ba
APPROVED:
OPINION COMMITTEE:
Geo. P. Blackburn, Chairman
J. Arthur Sandlin
Wallace Finfrock
Linward Shivers
Wayland C. Rivers, Jr.
REVIEWED FOR THE ATTORNEY GENERAL
By: W. V. Geppert