                      The Attorney                 General of Texas
                                        December      28,   1979
MARK WHITE
Attorney General


                   Honorable Hal H. Hood                     Opinion No. NW-119
                   Firemen’s Pension Commissioner
                   503-F Sam Houston State Office Bldg.      Re: Eligibility for membership in
                   Austin, Texas 78701                       the Pension Fund of a person who
                                                             has reached his 35th birthday, but
                                                             has not reached his 36th birthday.

                   Dear Commissioner   Hood:

                           You have asked our opinion in construing article 6243e, section
                   MA-3(i) which provides that no person is eligible for membership in the city
                   Fireman’s Relief and Retirement Fund if he is more than thirty-five (35)
                   years of age at the time he first enters service as a fireman. The question
                   presented is whether a person who is subject to this statute is “more than
                   thirty-five (35) years of age” the day after his 35th birthday or not until he
                   becomes thirty-six (36) years of age.

                         In construing this statute, we feel it significant that under article
                   l269m, section 9, dealing with fireman’s civil service, the requirement is
                   made that no person is eligible for a beginning position with a Fire
                   Department who has reached his thirty-sixth (36th) birthday.

                           While it is arguable that an individual is more than thirty-five (35)
                   years of age the day after his 35th birthday, the requirements of the civil
                   service law suggest that what the legislature intended by the phrase “more
                   than thirty-five (35) years of age” in article 6243e, section lOA-3(i) is age
                   thirty-six rather than thirty-five years and one day.

                                                    SUMMARY

                              For the purposes of article 6243e, section lOA-3(i), a
                              person is not more than thirty-five (35) years of age
                              until he reaches his thirty-sixth (36th) birthday.




                                               -    MARK     WHITE
                                                    Attorney General of Texas




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Honorable Hal H. Hood    -   Page Two   (Mw-119)




JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Eva King Loutzenhiser
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Bob Gammage
Susan Garrison
Rick Gilpin
Les King
Eva King Loutzenhiser
Bruce Youngblocd




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