Untitled Texas Attorney General Opinion

Honorable Hal H. Hood Opinion No. H-1048
Firemen's Pension Commissioner
Sam Houston Building Re: Authority of Firemen's
Austin, Texas 78701 Pension Commissioner to
permit out of time appeals.
Dear Mr. Hood:
You have requested our opinion regarding the authority
of the Firemen's Pension Commissioner to grant out-of-time
appeals. You explain that on July 29, 1976, the Board of
Trustees of the Firemen's Relief and Retirement Fund of the
City of Odessa denied the request of a retired fireman for
an increase in his monthly benefits. On December 31, 1976,
you granted the fireman's motion for an out-of-time appeal
from the Board's decision. You now ask whether it was within
your authority to do so.
Section 18 of article 6243e, V.T.C.S., provides in perti-
nent part:
Any person possessing the qualifications
herein required for retirement for length
of service or disability or having a claim
for temporary disability who deems him-
self aggrieved by the decision or order
of any Board of Trustees, whether because
of rejection or the amount allowed, may
appeal from the decision or order of such
Board of Trustees to the Firemen's Pension
Commissioner by giving written notice of
intention to appeal, which said notice
shall contain a statement of his intention
to appeal, together with a brief statement
of the grounds and reasons why he feels
aggrieved and which said notice aforesaid
shall be served personally upon the chair-
man or secretary-treasurer of said Board
of Trustees within twenty (20) days after
the date of such order or decision. After
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Honorable Hal H. Hood - Page 2 (H-1048)
service of such notice, the party ap-
pealing shall file with the Firemen's
Pension Commissioner a copy of such no-
tice of intention to appeal, together
with the affidavit of the party making
service thereof showing how, when, and
upon whom said notice was served. . . .
A final decision or order by such Fire-
men's Pension Commissioner may be ap-
pealed and an appeal therefrom may be
taken to the proper Court of Travis
County, Texas, having jurisdiction of
the subject matter, upon the serving
within twenty (20) days after date of
such decision or order of a notice in
writing of such intention to so appeal
upon the adverse party.
In Carson v. Hudson, 398 S.W.2d 321 (Tex. Civ. App. -- Austin
1966, no writ), the court held that compliance with the 20 day
requirement of section 18 authorizing appeals from a final de-
cision of the Firemen's Pension Commissioner
is mandatory in order to give the Dis-
trict Court jurisdiction over the case.
Id. at 323. The language of section 18 with respect to ap-
Gls from orders of the Board of Trustees to the Commissioner
is substantially the same,as the language regarding the later
stage of the appeal process. Since the court held that com-
pliance with the 20 day provision of the latter was mandatory,
we believe the court would apply the same principle to the
initial appellate procedure. In our opinion, the Firemen's
Pension Commissioner has no jurisdiction to hear an appeal from
an order of a Board of Trustees of a Firemen's Relief and Retire-
ment Fund unless the aggrieved fireman has filed his notice of
appeal with the Board of Trustees within 20 days after the date
of the Board's order, absent a judicial finding that the late
filing was "due to fraud and misrepresentations." Board of
Firemen's Relief and Retirement Fund Trustees Of Harris County v.
Stevens, 372 S.W.2d 572, 574 (Tex. Civ. App. -- Houston 1963, no
writ). In view of our answer to this question, we need not ad-
dress your two remaining qUeStiOnS.
SUMMARY
The Firemen's Pension Commissioner has no
jurisdiction to hear an appeal from an order
of a Board of Trustees of a Firemen's Relief
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Honorable Hal H. Hood - Page 3 (H-1048)
and Retirement Fund unless the aggrieved
fireman has filed his notice of appeal with
the Board of Trustees within 20 days after
the date of the Board's order, absent a judi-
cial finding that the late filing was due to
fraud or misrepresentation.
Very truly yours,
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
jst
P. 4317