Untitled Texas Attorney General Opinion ( 1942 )

OFFICEOFTHEAITORNEY GENERALOFI’EXAS
AUSTIN
Your rsquost for oplnl
ceriral,of Texas reads as Sol1
“In the operation
and Xetlrommt systcir ions or .:rt-
iale 62&3e, the follow
n e fire de-
bar of the spa-
tmntbeearm a
55 gears of ap, Is ha now
etlrement orwill be have t0
&M.lon 6 af ~rilcle W3e, Vernon’s Annotated
Civil Statutes reads 11s Poll~s:
“Leo. 6. Ch and after tba 1st dw,of Qril,
.any perwri who has been duly a.Ppointed
ana wJx3 has attaked the age of
yaqre, a& who has served aotiQeW
Eonorabls E. Bayne 3attsrSlold,Coimlsoloner,Page 2
for a perlcd OS twenty (20) years In sme regularly
orfganlzedfire department In any city Or tcwnin
thls State maw within or WMt atxy come wfthfn the
provislonaof this Aot, in any rank, whether aa
wholly paid, part paid or volunteer r1rene.n ehall
be entitled to be retired iron such sorvloo or de-
partraontand shall be entitled tc bc paid from the
Firemen*s Relief and Retirement Fund of that oily
or tan, a mcxithIypmuslon equal to one-half 0r
his average monthly eelary not to oxoeed a raaxlmuo
of One-Hundred Dollara (+%IO) per mnth. Zuoh
average monthly salary to be baeed on the monthly
aver o of hia salary for tho Site (5) pear porlo4
preoe iag the date of auoh rotlreuont;provldad
"p;
further, that elf hle avert@ monthly salary 1s
FlSty Dollars ($50) or lees per mcnth or 1f.a volun-
teer flromn with ne salary, he shall bo ontltlod
to a monthly penelon or retlronentsllowanoe of
Twenty-flueDollara (#25).-
2eotlon 21, Art&lo 62J+3o,V. A. 0. S., protidert
T-fko. P. In oomputlng the tiw or period
for rotlremant for Length af aemloo as heroin
pm~ft¶od, loss the5 ~110year out 01 ciervloe
or
emy tlw served in the amed ibreea of the Elation
arrriagwar or Hatloaal eaergenoy shall be osnstrued
as ocntlnueus aervloo, but If out mere thaa one
year and leas than five (5) years, ore&It shall be
given for prior aorvloe, but deduotlonmade for
the length or t&no out OS wrvloe. If out of serv-
loe mere than rive (5) y0are no previous faervlce
shall bo oounted, provldea houover that if a fire-
man bs out OS servluo over fire (51 yeare thmugh
no feult OS hla own and eubsequentreturns to the
depactwfit,this period of tlmo shall not be oouat-
ad against hlz in so tar as hla retirement tim Is
oonoemed. Arq fireman joinlag any regularly or-
ganized fire department oomlng wit&In the provi-
sions or thie hat aSter the eifoativedate hereof
shall not bc entitled to benefits hereunder uutfl
he sI.mlJhum served one year oontinuoUe~y~*
The ocndltlens thus lmpoti, regarillng eligibility
Sor retireslentbwiefitk, require that a psrLw)n be "daly a&
pointed and enrolled'; he met have attained the a&o of $5
years; he mast have aenetl aotlvely for a period of 20 pWg
Honorable H. Bayne Satterfleld,Commlssloner,Page 3
You state that Mr. A. "retiredfrom active servloe
prior to the time his &epartment beoame a participatingsaea~-
bar of the Retlrezent Syetem", and that "arter his department
became a partioipatingdepart&ant,Xr. A. was voted into the
department as a regular& enrolled and appointed mamber of the
department". You do not state what period or tine he was out
of the servloe of the partloular department. Thla is material
in determininghis ellglbllltyfor retirement purposes, Un-
der authority or Seotion 21, supra, if he Fare out or the serv-
lae less than rive years, he should reoeive credit for retim-
-mentpurposes for suoh period or tlma as he rpayhave prsdously
served. Ir, hocoever,he were out or the eervloe for more than
five years %o previous nenloe shall be oounted", unless he
was out or the servloe through no rault or his own, in whiah
event euoh “period of tlma shall not be oounted against him in-
sorar as his retirement tti is oonoerned*.
'&en WW.~L.W returned to the aervioe of the aepart-
ment he thereby again joined sameD Under the provlsioneof
Seotfon 21, supra, he must serve 'one year eontlnuouelyaarter
h.it~
return to the department before he &all be ontitled to
reoelve a pension.
Ii, therefore, Wr. A.” returned to the aenloe or
the departrPentwithin five $aars from the tima he resigned he
will be entitled to reoeiva a pension when he has served one
year after his return, all other requirementseri8tiag.
Youre t0ry truly
ATTORNEY
IIEHERAL
OF TSXAS
E. 0. Pharr
Asaii%tant
EGP:mp