      The Attorney General of Texas
                         December     28,   1978




Honorable Hal H. Hood                          Opinion No. H-l 3 11
Commissioner
Firemen’s Pension Commission                  Re: The time at which a fire-
Sam Houston Building                          man terminates his active ser-
Austin, Texas 78701                           vice.


Dear Commissioner Hood:

       You have requested an opinion regarding the construction        of the
Firemen’s Relief Pension fund,statute, article 6243e, V.T.C.S. Section 25A
provides that upon termination of “active service” the retiree is entitled to
the benefits and allowances in effect at the’time of his termination.     You
have asked when the termination of active service occurs in a particular
instance.

       In April, 1977, a fireman went on sick leave. He was retained on the
payroll and continued to make contributions to the pension fund. In May of
1978 he was granted a disability retirement pension retroactive to April, 1977.
 Thus, from April to May of the next year he was drawing the equivalent of his
full salary while on sick leave and receiving pension benefits, albeit
retroactively.   This practice is permissible. Attorney General Opinion H-1241
(1978); C-460 (1965). During this period the monthly pension benefits were
increased. The question is whether he is entitled to those in effect in April,
1977, or May, 1978. It is not asserted that the fireman continued in any active
duty after April, 1977.

        Section 26 defines an active fireman as one who receives a salary as a
fireman. However, we do not believe it follows that firemen who are drawing
sick leave are on active service while drawing such compensation. We believe
that the fireman’s election to have his disability benefits retroactive to April,
1977, thereby determines his termination of active service.           In Attorney
General Opinion V-llO1 (1950) it was concluded that a disability absence over
one year did not count towards the twenty years of active service required to
retire.    This opinion supports the proposition that disability leave, for some
purposes, is not active service.     In addition, section 7, on the subject of
disability retirement, provides in part that




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    Honorable Hal H. Hood    -   Page 2   (R-1311)




                 if and when such disability shall cease, such retirement      or
                 disability allowance shall be discontinued and such person shall
                 be restored to active service at not less than the same salary
                 he received at the time of his retirement for disability.

    Art. 6243e, S 7, V.T.C.S. (Emphasis added). We believe the implication of this
    section is that one cannot be considered on “active service” during the period of
    time for which he is drawing disability retirement benefits.

                                          SUMMARY

                 For purposes of section 25A, article 6243e, V.T.C.S., a
                 fireman’s termination of active service is that date on which
                 his disability retirement benefits begin to run.


                                                Very truly yours,




                                                Attorney General of Texas

-   APPROVED:                         v




    DAVID M. KENDALL. First Assistant




    C. ROBERT HEATH, Chairman
    Opinion Committee

    jsn




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