Untitled Texas Attorney General Opinion ( 1967 )

November 27, 1967
Hon. Marie Hudson Winters Opinion No. M- 162
Firemen's Pension Commlssloner
Sam Houston Building Re: Whether a fireman drawing
Austin, Texas 78701 disability benefits either
under Section 7 (service
connected disability) or
Sectlon 7A (off duty cover-
age) of Article 6243e,
Vernon's CZvil Statutes,
for a period of time b&f%?@
thereafter returning to the ~.'
fire department and who lat&
reslgps and requests a refund
of his contributions is en-
titled to be refunded all
of the money he has con-
tributed and receive dis-
ability benefits also; and
Dear Mrs. Winters: ~related question.
You have requested the oplnlbn of this office on the
above westion, together nith another question whlc,hwlll~be set
forth In the body of the opinion. In connection with the answer
to your fir& questitin,;ltIs necessary to quote portions of Sec-
tion lOA, and Section lOD, Article 6243e, Vernon's Civil Statutes.
Section J.OAapplies to cities of less than 185,000 Inhabitants,
while Section 10D applies to clti*s having 185,000 Inhabitants
but less than 225,000:
'Sec. 10A. . . .
1,
. . .
"(f) In the event a fireman terminates,
resigns, or leaves the active Pull-time serv-
ice of the fire department for any reason
other than those for which pension benefits
will accrU&, and before he receives his
Hon. Marie HudsonWInters, Page'2 :(M-162)
twenty (20) year pension certificate not
having completed twenty (20) years of active
full:tlme service in the city's fire depart-
ment, he shall receive anamount equal to the
sum total-of his monthly'paynients'made~
while
a participating member in the'Flremen's Re-
lief and Retirement Fund. . . .'I
"Sec. 10D. . . .
11
. . .
"(e) Thenseverance benefits of'~a'flre-
man who Subsequently terminates his employ-
ment before.hee'lseligible for retirement
shall~be~an'amount equal to the sum total
,.of'his.monthlycontributions made while a
participating member of the Firemen's Relief
and Retirement:Fund. . , :'
The above mentioned statutes are the only ones which
authorize the return of paid-in pension contributions. This
office haspreviously had occasion to- interpret Sections10A (f ',
supra. .Attorney General's Opinions C-153 (1963) and C-572 (19ii
5~).
It has been consistently held that a fireman who terminates,'re-
signs or leaves the active full-time service of a fire depart-'
ment for any reason other than those for which pension benefits
will accrue, is entitled to reimbursement of all monthly payments
made by him. The statutes make no provision for any exception
to this order of repayment. Further, no gratuity Is Involvedfin
making a refund of contributions when a fireman terminate~safter
a period of dlsablllty~ City of Orange vs. Chance, 325 S;W.2d
839 (Tex.Clv.App. 1959,~.nowrit).
In answer to your first question, therefore, you are
advised that It Is the opinion of this office that'it Is im-~
material whether a fireman draws disability benefits for some
period prior to his return to active service and Subsequent
separation from the fire department. His refund of paid-in
contributions Is due him under the aforesaid Section lOA or
Section lOD(e), Article 6243e, provided his city fits within
the population brackets established in those statutes.
With reference to your second question, we quote the
following from Article 6243e:
"Sec. 6~. Any fireman who is a member
of a 'full paid' fire department and who
shall be entitled to be retired under the
.(~462).
Bon. Marie Hudson Winters, ~page::z :
provisions of Section 6 of thIsAct, and
who shall retlre'under Section 6 or Section
7 or Section 7A with additional time of
service and of participation in a Fund
after the date upon which he became en-
titled to be retired or with more than
twenty-five (25) years of service and of
participation In a Fund, shall be entitled
to be paid from the Firemen's Relief and
Retirement Fund of the city or town In
which he last served, in addition to any
other benefits provlded.by.this Act, an
additional monthlv nension allowance
which shall be ,computedas follows: the
sum of Four Dollars ($4) per month ah=
be allowed for each full year of service
and of nartlcloation In a Fund after the
date upon which such .flreman shall have.
become entitled to be.re,tiredunder Set-~
tion 6, or after the date upon which such
fireman shall haV8 Completed twenty-five
(25) years of service and.of participation
in a Fund, whichever date shall first
occur; provided, however, that such ad-
ditional pension allowance shall not
eXC8ed the sum'of Fifty&six Dollars
($56) per month."
“Sec. 7A. Whenever a person Serving
.~as an active fireman duly enrolled in any
regularly active fire department in any
city or town In the State having a popula-
tion of less than five hundred thousand
(500,000) according to the last preceding
Federal Census, which city or town.is now
within or may hereafter come within the
provisions of this Act, shall die or be-
come disabled from any cause other than
a disability acquired In the performance
of his duty~as a fireman, a pension al-
lowance shall be paid to the widow or fire-
man. The monthly pension allowance~shall~
be computed as follows: five per cent
(5s) of the~total-amount the individual
fireman or widow would have been entitled
to receive under Section 7 or Section 12
had such death or disability occurred
as the result of such fireman's being
Hon. Marie Hudson Winters, page~4 ~(W-162)'
Incapacitated or killed while ln'arid/or
in consequence of the nerforme&ideof his
duty as a fireman shall be allowed for
each year of participation in the relief
and retirement fund, provided'that such
allowance shall not be .comnuted'on the
basis of more than twenty (20) years. In
no event, however,.shall such fireman or
widow receive an amount.less than Fifty
Dollars ($50) per month. If such fireman
be a volunteer fireman and thereby receiving
no salary, the amount so ordered paid, If-
all of the other conditions have been met,
shall be not less tha*iTwelve Dollars'and
Fifty Cents ($12.50).per month," (Bnphasls
added).
In connection with the above quoted statutory provisions,
you ask this office the following question:
"In your opinion does this mean a
clalmant.ls entitled to.benefits computed
on a full.year of partlclpatlon or
ssl e event portions of years are ln-
valved - such.as six months or 11 months
should the benefits be computed on 6/12ths
of a year and 11/12ths of a year for this
portion which as not a full year."
It Ii the opinion of this office that the underlined
portions of the above quoted statutory provisions clearly establish
one year of service as the basis for each increment of disability
or retirement benefit. The statutes make no provision for any
basis of calculation other than a full year. Thus, a proration
based upon a day, a week, or a month's service would have no
support in the statutes.
SUMMARY
A fireman in cities affected by Sections
10A f) or Section lOB(e), Article 62438, Ver-
non i8 Civil Statutes, is entitled to a refund
of paid-in contributions to the retirement fund
upon his separation from the fire department, not-
withstanding some prior payment of disability
benefits.
-76C-
Hon. Marie Hudson Winters, page 5 (M-162)
Sections 6A~and 7A of Article 6243e, pro-
vide that the amount 6f retirement olrdisability
benefits will be computed on a yearly baais of
service and not monthly, weekly or daily.
truly yours,
I tzm=
C. MARTIN
ney General of Texas
Prepared by Malcolm L. Quick
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
David Longorla
Ralph Rash
John Hanks
A. J. CARUBEX, JR.
Staff Legal Assistant
-761.