Untitled Texas Attorney General Opinion ( 1953 )

December 28, 1953
Hon. G. F. Williams Opinion NO. S-118
Firemen's Pension Commissioner
Austin.
, Texas Re: Eligibility of a re-
tired Volunteer Fire-
man to again partici-
pate in the Firemen's
Pension System by se-
curing employment as
Dear Mr. Williams: a paid fireman.
Your request for an opinion of this office is as
follows:
"We desire the opinion of your office re-
garding a man who has been drawing a pension
as a volunteer fireman being hired as a paid
man and resuming participation in the Pension
System on a paid basis.
"One of the smaller towns participating
in the Firemen's Pension System has a man who
was retired after having served more than
twenty years and reaching the age of 55. He
was paid the maximum volunteer's pension of
$25.00 a month for almost two years. The City
has now hired this man as a paid fireman. His
pension has, of course, been stopped and he has
started contributing into the Pension Fund on a
percentage of his salary.
"It is the opinion of this Department that
once a man has reached retirement age and has
been retired on pension, he cannot again start
participating in the Pension Fund. It is our
opinion that should he be employed again by the
Fire Department, his pension should just be dis-
continued while he is drawing a salary. It
seems to be the opinion of the local Pension
Board that this man can pay into the Fund now on
his salary and after a five-year period be re-
tired on the basis of a paid man, his pension
being figured on one half of his monthly salary
. ‘:.
Hon. G. F. Williams, page 2 (S-118)
for the five-year period just prior to his
second retirement.
"Your opinion is necessary due to the
conflicting view of this Department and the
local Pension Board. Please advise If the
man can start contributing again after once
having been on pension."
In effect you have asked for our opinion on the eli-
gibility of a retired volunteer fireman to return and again
participate in the Firemen's Pension System by receiving em-
ployment as a paid fireman and thus, after five additional
years of service as such, being able to again retire but this
time on the basis of a fully paid fireman.
We are of the belief that the intent and purpose of
the Legislature in creating the Firemen's Relief and Pension
Fund (Article 6243e, Vernon's Civil Statutes) was two-fold:
First, to reward and compensate the firemen throughout the
State who have performed dangerous and extra hazardous duties
protecting others' lives and property through many years of
service; and second, to induce men to enter active Service as
firemen and to retain their service as such. We also have the
further consideration that the Act provides what is generally
known and considered as a "Firemen's Pension": our oension laws
are generally liberally construed in favor of'the p&loner.
Board of Fi men R ie & Retirement Fund Tru tees of Houstop
v. Marks, 2;; S ~S2de~20~5 (Tex.Civ.,App.1951,Sreversed on '~
ther grounds 2;2'S.W.2d 181, 27 A.L.R. 2d 965); 40 Am. Jur.963,
Fensions, Sec. 4.
With these principles in mind, we will now look to
the wording of the applicable portions of the Act (Article
6243e, as amended by Chapter 82, Acts of the 53rd Legislature,
1953, page 352) which read as follows:
"Section 6. Any person who has been duly
appointed and enrolled and who has attained t&
age of fiftv-five (5'5)vears. and ho has ser ed
actively for a aeriod of twentv (2:) year& inv
one or more regularly organized fire departments
in any city or town in this State now within or
that may come within the provisions of this Act,
in any rank, whether as wholly paid, part paid
or volunteer fireman, shall be entitled to b rq-
tired from such service or department and &&,&
be entitled to be oaj& from the Firemen's Relief
Hon. G. F. Williams, page 3 (S-118)
and Retirement
..- Fund of that city or town,
a monthly pension equal to one half of his
average monthly salary not to exceed a maxl-
mum of One Hundred Dollars ($100) per month,
except as hereinafter provided; such average
monthly salarv to be based on the monthly
averaae of his salary for the five (5')year
period D e edinn the dat f u h retirement
provided'f&ther, that 1: &ssaterage monthlb
salary is Fifty Dollars ($50) or less per "
month, or if~a voluntee,rfireman with no sal-
ary, he shall be entitled to a monthly pension
or retirement allowance of Twenty-five Dollars
(?P5). Notwithstanding any other provision of
this Act, it is hereby specially provided that
any eligible and qualified fireman who shall
have completed twenty (20) years of ser ice
before reaching the age of fifty-five (F 5)
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 fifty-five
(55) years, will be entitled to the retirement
and other applicable benefits of this Act;
provided further, that when anv fireman shall
have been issued such certificate he hall
when reachins retirement ase. be entifled
all the aoolicable benefits of the Act. eve:
thouph he shall not have been engaged in ac-
tive service as a fireman after the I uan Q
f u h ertificate Provided furtheis thzt
Tn kiercto particiiate in the benefit: au-
thorized under this Act all persons shall con-
tinue to pay into the Firemen's Relief and Re-
tirement Fund the amounts provided for all
participants thereunder up to the time of their
retirement. Provided further, that any regu-
larly organized 'full paid' fire department in
any city or town in this State now within or
that may come within the provisions of this
,Act,may, upon a majority vote of said Board
of Trustees, increase the maximum pension to
One Hundred Fifty Dollars ($150) per month."
(Emphasis supplied)
Section 7 of Article 6243e, supra, after providing
for retirement in cases of disability suffered while on active
duty, continues as follows:
Hon. G. F. Williams, page 4 (s-118)
,"Section 7. e D . provided further, that
if and when such disability shall cease, such
retirement or disability allowance shall be
discontinued and such person shall be EX&ed
to active service at not less than the same
salary he received at the time of his retirement
for disability." (Emphasis supplied.)
"Sec. 14. Any fireman possessing the qual-
ifications ,and beine:eliaible for voluntarv re-
tirement, but who shall elect to continue in the
service of such fire department, may aoply to%
Board of Trustees for a certificate, and if found
to possess su,chqualifications and be eligible
for retirement as herein provided, the Board of
Trustees shall issue to such fireman a certificate
showing'hlm to be entitled to retlremerkor dlsa-
blllty allowance. . D .' (Emphasis supplied)
"Sec. I6.'Any retired fireman may be re-
called to duty In case of great conflagration and
shall perform such duty as the chief of the fire
department may direct, but shall have no claim'
against such city or town for payment for such
duty so performed."
In studying the pertinent sections above, we find
that the Act nowhere disqualifies nor prohibits a"person from
returning Into servl,ceas a fireman after he has elected
to retire. The act Is specific in providing that the retiring
paid fireman la entitled to receive t,hepay or pension based
on his pay during the last five (5) years of service, If the
vol,unteerfireman has retired, butreturns and serves another
five (5) years In a'full pay'capacity and contributes into the
Fund during all of that,time, he Is entitled to his pension'
based on the pay received by him during his last five (5)
years of service.
It is our opinion, under the facts as given us In
your letter, that a volunteer flreman who elected to retire,
and drew a pension as such, may return, contribute to and
benefit from the Fund by reason of again accepting employ-
ment as a paid fireman.
Hon. G. F. Williams, page 5 (s-118)
SUMMARY
A volunteer fireman who has elected to
retire and who has drawn a pension as a re-
tired fireman, is eligible to return, contrib-
ute to and participate in the Firemen's Pension
System by securing employment as a paid fire-
man; on subsequent retirement, his pension is
based on the pay received by him during his last
five (5) years of service. Sec. 6, Art. 6243e,
V.C.S.
Yours very truly,
APPROVED: JOHN BEN SREPPERD
Attorney General
Rudy G. Rice
State Affairs Division
John Atchison
Reviewer
Robert S. Tro'rti
First Assistant
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