                                 EXAS




Mrs. Marie Hudson                       Opinion No.,C-446
Firemen's Pension Commissioner
1010 Sam Houston Building               Re: Whether, under Section 17 of
Austin, Texas                           Article 6243e, V.C.S., the,Board
                                        of Firemen's Relief and Retire-
                                        ment Fund Trustees of Galveston,
                                        Texas, is author,ized to pay
                                        pension benefits to a wife, who
                                        pensioner married after his
                                        retirement, and pensioner is in
                                        the penitentiary serving a
                                        sentence for a felony.
Dear Mrs. Hudson:

     Your recent request for an opinion of this office reads in
part as follows:

          "The Firemen's Pension Board of Galveston, Texas,
     has requested that I secure your official ruling on
     a matter involving Sections 17 and 12 of the Firemen's
     Pension Law.   (Article 6243e, Vernon's Civil Statutes)

          "Galveston has a fireman who retired under the
     provisions of the,Law pertaining to age and service -
     Section 6. This fireman had served in the Fire
     Department for more than thirty years and was past
     age 55. After his retirement he re-married.

          "This retired fireman has been convicted of a
     felony and given a two-year sentence in the penitentiary.
     Section 17 of the Firemen's Pension Law states:




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Mrs. Marie Hudson, page 2 (C-446)


          'Whenever any person who shall have been
          granted an allowance hereunder shall have been
          convicted of a felony, then the Board of
          Trustees shall order the allowance so granted
          or allowed such person discontinued, and in
          lieu thereof, order paid to his wife, and/or
          dependent child, children or dependent parent,
          the amount herein provided to be paid such
          dependent or dependents in case of the death
          of the person so originally granted or entitled
          to allowance.'

          "Inasmuch as this fireman married his present
     wife after his retirement and she would not be
     entitled to widow's benefits in the event of his
     death - as set out in Section 12 - would the Galveston
     Pension Board be permitted to pay benefits to the
     present wife.

           "The Galveston firemen feel that this fireman
     put in more than the required years and met all of
     the other requirements for retirement and that he is
     entitled to the pension which he has rightfully'and
     by Law earned. It would seem to this office that
     benefits should~be paid to his present wife but we
     respectfully request your ruling on the exact inter-
     pretation of Sections 17 and 12 as it pertains to
     this particular case."

       Article    6243e.   Vernon's Civil Statutes, is known as the
Firemen's Relief and Retirement Fund Act. The pertinent provisions
of Article     6243e,    Vernon's Civil Statutes, are quoted as follows:

          "Sec. 12. If any member of any department...
     who has been retired on allowance because of length
     of service or disability, shall thereafter die from
     any cause whatsoever: or if while in service, any
     member shall die from any cause growing out of and/or
     in consequence of the performance of his duty: or shall




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Mrs. Marie Hudson, page 3 (C-446)


    die from any cause whatsoever after he has become
    entitled to an allowance or pension certificate and
    shall leave surviving a widow.,.'+.~.
                                        said Board of
    Trustees shall order paid a monthlv allowance as
    follows:   (a) to the widow, so lonq as she remain a
    widow and provided she shall have married such member
    prior to his retirement, a sum equal to one-third (l/3)
    of the average monthly salary of the deceased at the
    time of his retirement on allowance or death: ...(I
     (Emphasis supplied.)

          'nSec. 17. Whenever any person who shall have
     been granted an allowance hereunder shall have been
     convicted of a felony, then the Board of Trustees
     shall order the allowance so granted or allowed such
     person discontinued, and in lieu thereof, order paid
     to his wife, .,. dependent parent, the amount herein
     provided to be paid such dependent or dependents in
     case of the death of the person so oriqinallv qranted
     or entitled to allowance." (Emphasis supplied).

     If Section 17, above quoted, in part, is constitutional, as the
present wife did not marry the retired fireman prior to his retire-
ment, she would not be entitled to receive an allowance.

     Section 21 of Article I of the Texas Constitution provides:

          "No conriiction shall work corruption of blood,
    ,or forfeiture of estate, and the estate of those who
    destroy their own lives shall descend or vest as in
     case of natural death." (Emphasis supplied)

     In the interpretziire,~commentary   in Vernon's Constitution of
Texas, it is stated:




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Mrs. Marie Hudson, page 4 (C-446)


          "By this broad provision of the Texas Constitution,
     corruption of blood of forfeiture of estate upon con-
     viction or suicide is prbhibited, and it is so explicit
     as to have precluded controversy in the courts on the
     subject."

     In 12 Tex. Jur. 2d 391, Constitutional Law, Sec. 46, it is
stated:

          "It is the general rule that an unconstitutional
    statute, though having the form and name of law, is in
    reality no law and in legal contemplation is as in-
    operative as if it had never undergone the formalities
    of enactment.   Such a statute leaves the question that
     it purports to settle just as it was prior to its
     ineffectual enactment.  It is invalid and imposes no
    duties, confers no rights, creates no office, bestows
    ~no power, affords no protection, and justifies no
    acts performed under it."

     The following cases are cited and fully support the above
statement:

     Miller v. Davis, 136 Tex 299, 159 SW2d 973 (19411,
     136 ALR 177; Colden v. Alexander, 141 Tex 134, 171
     SW2d 328 (1943); State v. Shippers Compress & Warehouse
     co., 67 SW 1049 (Tex.Civ.App. 1902); Bockhorn, In re 62
     Crim Rep 651, 138 SW 706; Davis v. Allison x89-SW 968
     ~(Tex~.Ciir: App. 1911); Holamn v. Pabst, 27 SW2d 340
      (Tex. Civ. App. 1930 Error ref.): Genzer v..Fillip,
     134 SW 2d 730 (Tex. Civ. App. 1939:error dismd. judm. car);
     Cloud v. Cloud, 139 SW2d 826 (Tex.,Civ. App. 1940);
     Lamar Life Ins. Co. v. Jordan, 163 SW2d 215 (Tex. Civ.
     App. 1940 error refw;o&); Halsted, In re 182 SW 2d
     479 (Tex. Crim. 1944).

     See also Davis v. Laning, 19 SW 846 (Tex. Sup. 1892) which
holds that under the law of Texas, the estate of one sentenced
to imprisonment for life does not descend or vest as in case
of death. The Supreme Court stated:




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L   -




        Mrs. Marie Hudson, page 5 (C-446)


                       ...Attainders. outlawry, deprivation of
             property except by due process of law, and the
             corruption of blood or forfeiture ,of estate,     as ~a
             result     of conviction of crime, are expressly
             prohibited by the organic law. Const. art. 1 as 16,
             19-21. Section 21 declares that "no conviction shall
             work a corruption of blood or forfeiture of estate,
             andthe estates of those who destroy their own lives
             shall descend or vest as in case of natural death.'
              .. . .II

             Therefore, it is our opinion that Section 17 of Article 6243e,
        Vernon's Civil Statutes, being clearly in violation of Section 21
        of Article ,I of our Constitution, the Board of Trustees do not
        have the authority to order the pension allowance granted to
        a retired fireman who has been convicted of a felony to be dis-
        continued.  The pension checks should be delivered to the re-
        tired fireman as provided under the provisions of Article 6243e
        until his death.

                                            SUMMARY

                      Section 17 of Article 6243e, Vernon's Civil
                      Statutes, being clearly in violation of
                      Section 21 of Article I of our Constitution,
                    : the Boar&of Trustees: do not have the
                      authority to order the pension allowance
                      granted to a retired fireman who has been
                      convicted of a felony to be discontinued.
                      The pension checks should be delivered to
                      the retired fireman as provided under the
                      provisions of Article 6243e until his death.

                                                Yours very truly,

                                                WAGGONER CARR




                                                  George #. Gray, III
                                                  Assistant Attorney General
        GWG:me



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Mrs. Marie Hudson, Page 6 (C-446)



APPROVED:
OPINION COMMITTEE

W. V. Geppert, Chairman

T. B. Wright
Jack Goodman
Linward Shivers
Sam Lane
Wade:.Anderson

APPROVED FOR THE ATTORNEY GENERAL
BY:   Stanton Stone,




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