Untitled Texas Attorney General Opinion ( 1961 )

E EY GENE
October 18, 1961
Mrs. Marie Hudson
Firemen's Pension Commissioner
Austin, Texas Opinion No..W-1168
Re: Questions relative to
the construction of Sec-
tion 6a of Article
6243e Vernon's Civil
Dear Mrs. Hudson: Statutes.
Your request for an opinion presents the
following questions:
1.) Whether the additional pension
benefits provided for In Section 6a
of Article 6243 automatically became
applicable on the date that Section
6a became law, or do the provisions
of Section 6a become applicable only
when a qualified fire department votes
to include the additional benefits in
pension payments.
Whether Section 6a of Article
$513e is retroactive In its applica-
tion and effect.
Article 6243e of Vernon's Civil Statutes Is
known as the Firemen's Relief and Retirement Fund Act.
Section 6a of the Act was added by amendment in 1957.
This section reads in part as follows:
"Sec. 6~. Any fireman who is
a member of a 'full pa-id'fire
department and who shall be entitled
to be retired under the provisions
of Section 6 of this Act, and who
shall retire under Section 6 or Sec-
tion 7 or Section 7A with additional
time of service and of partiefpatlon
in a Fund after the date upon which
he became entitled to be retired or
with more than twenty-five (25) years
.
Honorable Marie Hudson, page 2 (WW-1168)
of service and of participation In a
Fund, shall be entitled to be paid
from the Firemen's Relief and Retlre-
ment Fund of the city or town In which
he last served, In addition to any
other benefits provided by this Act,
an additional monthly pension allowance
which shall be computed as follows:
. . e
"If any person shall die from any
cause whatsoever and if, at the time of
death, such person shall have retired
with or shall have been entitled to
retire with an additional monthly pen-
sion allowance as hereinabove provided
by this section, and If such deceased
shall leave surviving him a widow who
married the deceased prior to his
retirement, O O Q
"Provided, however, that the pro-
visions of this section shall not be
applicable to any particular relief
and retirement fund until after an
election has been held and the majority
of the participating members of that
respective fund have voted to include
the provisions contained in this sec-
tion within that Relief and Retiremen%
Fund."
The 1957 amendments to ArtPcle 6243e were
enacted as H.B. 68, 55th Texas Legislature, Regular
Session, 1957* That portion of the caption to Hefl.68
most pertinent to our discussion is as follows:
and by adding thereto a new section numbered Section'6i,
providing an additional monthly penslon allowance for
members of "full paidD fire departments who have additional
service after being entitled to retire or after twenty-five
(25) years of service; or for widows of such firemen, and
providing that the provisions of such Section shall
become applicable to a Fund on1 m the vote of the
-"--($mphasiGdw
members of such Fund; L)D O -her
plain and unambigious language employed by the Legis-
lature in both the caption and the text of the section
expresses the legislative intent that the provisions are
to become applicable to a particular Relief and Retire-
ment Fund only upon the election by the majority of the
Honorable Marie Hudson, page 3 (WW-1168)
participating members of such fund to include the pro-
visions of the section \;lithin
their respective Relief
and Retirement Funds. Where a statute is plain and
unambi@.ous, it will be enforced according to its
words. Anderson v. Penix, 138 Tex. 596, 161 S.W.2d 455
(1942). Also, the case of Harris County v. Smith, 187
S.W. 701 (Civ.App. 1916), held that the intent of the
Legislature as to a law is to be determined primarily
from the plain and ordinary import of the language
employed.
Therefore, it is our opinion that no rights
to the additional benefits specified in Section 6a
vest In the participating members or their survivors
until the election requirement set out within the
section is satisfied.
However, the question remains whether these
additional benefits are available to retired firemen,
meaning those persons no longer on active service with
the department, subsequent to such an election in view
of the fact that these persons were not active and were
receiving pension payments at the date of the election.
It is our opinion that those persons who have 'retired"
and who have received retirement benefits prior to the
election discussed above have no right to participate
in or otherwise receive benefits under Section 6a of
Article 6243e, Vernon's Civil Statutes.
It must be noted that one of the primary
requisites for any fireman to be entitled to any
benefits under Section 6a is that he is to be a member
of a "full paid" fire department. It is evident
that a person who has retired from actfve duty and who
is receiving a retirement pension does not have the
required employment status. Also, there is no language
in the section which indicates that uptinelection the
benefit provisions of Section 6a are to become retro-
active in their effect and application. On the contrary,
if there is any doubt as to the intent of the Legisla-
ture in this respect> such doubt must be resolved
against the precept that the benefit provisions of the
Section are retroactive in their application and effect.
The case of McCain v. Yost, 278 S.W.2d 398 (Civ.App.
1955), held that the Legislature Is ordinarily pre-
sumed to intend that an enactment shall operate
prospectively and not retrospectively. In addition the
Supreme Court case of State v. Humble Oil and Refining
Company, 141 Tex. 40, 169 S.W.2d 707 (1943) held that a
Honorable Marie Hudson, page 4 (``-1168)
statute will not be applied retrospectively, even where
there is no constitutional impedement against such appli-
cation, unless it appears by the fair implication derived
from the language used therein that it was the intention of
the Legislature to make the statute applicable to both
the past and present. Thus, the rule of construction
appears to be that . o O a statute is generally held to
operate prospectively unless a contrary construction is
required by the terms. 39 Tex.Jur. 55, Statutes, Sec.
27.
When H.B. 62, 57th Leg., R.S., 1961, becomes
effective in November, 1961, as Section 25a of Article
6243e, Vernon's Civil Statutes, the issue as to the
retrospective effect of Section Sa should be permanently
resolved.
That portion of the Bill which will constitute
Section 25A provides as follows:
'Sec. 25A. After a fireman
who is a member of a 'full paid'
fire department at the termination
of his active service shall terminate
his active service, the amounts of
& allowances & benefits which
& fireman OP his beneficiaries may
thereafter become entitled &receive
from a Firemen's Relief & Retirement
Fund shall & computed,on the basis of
thf. schedule of allowan,Aesm benefits
& effect for such Firemen's Relfef and
Retirement Fund at the time of the
termination of such fireman"s active
service.'' (Emphasisaddeb)
The fact that the 57th Legislature passed
H.B. 62 clearly indicates that the Legislature was
cognizant of the fact that it was perhaps possible to
construe the present pension benefit provisions of the
Firemen's Relief and Retirement Fund Act as being retro-
active in their application and effect. It is our opinion
that H.B. 62 clarifies the law on this point.
SUMMARY
The provisions of Section 6a of
Article 6243e, Vernon's Civil
Honorable Marie Hudson, page 5 (WW-1168)
Statutes, are not applicable to
any particular Firemen's Relief
and Retirement Fund of any city or
town until after an election has
been held and the majority of the
participating members of the
respective funds have elected to
include the provisions in this
Section within their respective
Relief and Retirement Funds.
The provisions of Section 6a are not
retroactive in their application and
effect. This is to say that in
order for a person or his survivors
to be entitled to the benefits under
Section 6a, the election to include
the provisions of the Section must
occur prior to the time such person
terminates his active service as a
fireman with a "full paid" fire
department.
Yours very truly,
WILL WILSON
Attorney General of Texas
1RW:lgh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
J. Arthur Sandlin
John Reeves
Bob Eric Shannon
REVIEWED FOR THE ATMRNEY GENERAL
BY: Houghton Brownlee, Jr.