Untitled Texas Attorney General Opinion ( 1970 )

May 13, 1970
Mrs. PlarieWinters Opinion No. M- 630
Firemen's Pension Commissioner
1010 Sam Houston Building Re: Way a former member of the
Austin, Texas 78701 Firemen's Relief and Re-
tirement Fund who withdrew
his contributionsand can-
celled all hla aervlce,
return and be eligible to
membership in the Fund
after he has passed the
age of 35 years~(Art.
Dear Mrs. Winters: 6243e, Sec. lOA-2, V.C.S.).
In your letter requestingan opinion from this office,
you submit the following facts which we quote, In part, as follows:
"The Fire Department of Brownwood, Texas,
has re-hired a fireman who was in the Fire
Department but resigned and withdrew his con-
tributions and signed a cow of our standard
form 35, . . .
IS
. . .
"It Is the policy of all our other Pension
Boards, in which this office concurs, that when
a fireman resigns and withdraws his contributions
he cancels out all prior service, since he Is not
allowed credit nor Is there a provision fo$ repay-
ment of contributionsso withdrawn. . . .
In addition, you have informed us that the Individualwho la the
subject of your Inquiry orlglnally jolned the City of Brownwood
Fire Department at the age of 21 on June 10, 1955. He served
continuouslyas a fireman until he resigned from the Department
on March 1, 1965. Thereafter,he was Fe-hired by the fire depart-
ment on March 1, 1966, and he again resigned on August 5, 1968. On
January 12, 1970, he was re-hired as a fireman with the department.
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Mrs. Marie Winters, page 2 (M-630)
With regard to these facts, you ask the following question:
II
. . . May we have your official ruling aa
to whether or not a man may withdraw his con-
tributions,cancel all service and again return
to the Department even though he la over 35.
The provisions of the Firemen's Relief and Retirement
Fund Act most pertlnent:,inanswering your question are contained
In Section lOA-2(f), Article 6243e, Vernon'? Civil Statutes. The
provisions of this Section are applicable to cities of leaa than
185,000 population and became effective August 28, 1967. Section
lOA-2(f) provides, In part, as follows:
"Each person who shall hereafter become a
fireman In any city which haa a Firemen's Relief
and Retirement Fund to which he 1s eligible for
membership, ahall become a member of such Fund
as a condition of his appointment,and shall by
acceptance of such position agree to make and
shall make contributionsrequired under this
Act of members of such Fund, and shall participate
In the benefits of membership In such Fund as pro-
vided in this Act, provided however, that no person
shall be eligible to membership In any such Fund
who Is more than thirty-five (35) years of age
at th$ time he first enters service as a fireman;
. . .
Section lOE(d), Article 6243e, Vernon's Civil Statutes,
Is applicable to cities having a population In excess of 900,000
population. Other than the ellglbllltyfor membership requirement
specifying the age of thirty rather than thirty-fiveas the maximum
age at the time of first entry Into service as a fireman, the pro-
visions of Section lOE(d) are Identicalwith those of Section lOA-
(f).
The facts submitted in connectionwith Attorney ffeneral's
Opinion W-24 (1967) concerned a fireman who had prior service in a
fire department but who had resigned and after an absence of more
than one year was again employed with the ,department. At the time
of his re-employmenthe was 31 years old. In construing Section
lOE(d) In view of these facts, the opinion holds as follows:
II The statute, by Its terms, dfd not,
and dois'n&, apply retroactively,but fs directed
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I .
Mrs. Marie WInterSI, page 3 (M-630)
at persons who first entered service after the
effective date me aot. hrenote from the
fact situation submittedby you that the fireman
In question has had an InterruptionIn his service
of something over one year. Thus, his re-entry
Into the service does not constitute a first '
entry Into s,ervice. The words of the statute
are clear, and there Is nothing to Indicate a
contrary construction. You are therefore ad-
vised that It Is the opinion of this office
that the said fireman la fully entitled to
participate in the FIremen's Relief and Re-
tirement Fund asna regular member of his city's
Fire Department.
It Is our opinion that the Interpretationcontained In
Attorney General's Opinion M-24 (1967) of the phrase "first
entered as that phrase Is used In Section lOE(f), la controlling
as to the Interpretationwe must give the aame phrase aa It appears
In Section lOA-2(f).
On the occasion of each of his two resignationsfrom the
Brownwood Fire Department,t,hesubject Individualwas authorized to
withdraw his contributionsto the Pension Fund under the provisions
of Section lOA-2(f), Article 6243e, Vernon's Clvll Statutes, and the
holdings of Attorney Oeneral's Opinions C-153 (1963), C-572 (1965)
and Board of Firemen's Relief and Retirement Fund Trustees of
Amar'illo,et al. v. Parks, et a1 ., 424 S.W.2d 59 (Tex.Clv.App.
968 , n.w. . .
'I 12, 1970, the d.atehe was re-hired
by the Brownwood Fire Department, he was authorized to receive re-
tirement credit for his prior service under the authority of Sec-
tion 21, Article 6243e, Vernon's Civil Statutes. Section 21 pro-
vides, In part, as follows:
"Sec. 21. In computing the time or period
for retirement for lenath of service aa herein
provided, . . . If out-more than one (1) year
and less than fl\re (5) years, credit shall,be
but deduction made
t of service. . . .
Any firemen-joiningany regularly organized
fire department coming within the provisions
of this Act after the effective date hereof
shall be entitled to benefits hereunder after
he has filed a statementthat he desires to
participate In the benefits from the Firemen's
Relief and Retirement Fund, as provided In
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. .
Mrs. Marie Winters, page 4
Section 10 or Section 1OB of this Act, but he
shall not be entitled to any disability
. . benefits
. .
on account of any slcicnessor InJury recelveo
before the statementwas filed.' (Emphasis
added.)
It Is noted that while Section 21 provides for'recelvlng
retirement credit 'forprevious service, It contains no express
provisionswhich would require an lnd.lvldual at the tlme'of his
re-employmentas a fireman to refund contributionspreviously
withdrawn by him from the Fund at the time he again becomes a
participatingmember of the clty,'sFiremen's Relief zindRetirement
Fund. He need,not claim such previous service,for retirement
credit to become eligible as a member of the fund for the future.
It Is our opinion that an Individual'sright to retire-
ment credit for previous service, however, Is encumbered with a
neceaaarLly implied obligationto refund all contributionspreviously
withdrawn for such service,clalmed, since all pension benefits pro-
vided for under the provisions,ofArticle 6243e are based on total
amount of contributionsmade during the total period of the firemen's
active service. A contrary constructionof Section 21 would lead to
har,dshlp,Injustice,and serious consequences,undermlhlngthen
financial basis of the entire firemen's pension system. This would
result In unjust enrichment and be an unreasonableconstruction.
53 Tex.Jur.2d 243-246, Statutes, § 1.65 and 166.
SUMMARY
An Individualwho was re-hired dy ,the.
Brownwood Fire Department on January 12, 1970,
was entl%led at that time to become a participating
member of that city's Relief and Retirement Fund
though he was over 35 years old. However, for him
to be entitled to retirement credit for previous
service, he must refund all contributionsmade by
him to the Pension Fund which he had previously
withdrawn for such service claimed at the times
of his previous resignationsfrom the Department.
truly yours,
k&e
C. MARTIN
ney General of Texas
Prepared by Ivan R, Wllllams, Jr.
Assistant Attorney General
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‘ .
Mrs. Marie Winters, page 5 (M-630)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chalrman~
W. E. Allen, Acting Co-Chairman
Alan Minter
James McCoy
Dan Green
Tom Sedberry
ALFRED WALKER
Executive Assistant
MJZADEF. GRIFFIN
Staff Legal Assistant
NOLA WRITE
First Assistant
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