                     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.
