                    October 3, 1963


Mrs. Marie Hudson
Firemen's Pension Commissioner
1010 State Office Building
Austin, Texas
                              Opinion No. C- 153
                              Re:   Construct~ionof H. B. 35,
                                    Section 1OA (f), Acts of
Dear Mrs. Hudson:                   58th Legislature, 1963.
          We quote from your letter requesting an opinion
from this office, in part as follows:
          "Several Pension Boards
                              .   have .re-
     quested-your opinion on that section
     of House Bill 35 amending Section 1OA
     (f) of the Firemen's PensionLaw which
     reads in part as follows:
          "'In the event a fireman terminates,
     resigns, or leaves the active full-time
     service of the fire department for any
     reason other than those for which pension
     benefits will accrue . . . he shall receive
     an amount equal to the,sum total of his
     monthly payments made while a partlcipat- ~'
     ing member in the Firemen's Relief and
     Retirement Fund.'
          "Some of the Pension Board Secretaries
     are trying to interpret this to mean that a
     fireman is only entitled to his contributions
     paid in ,afterHouse Bill 35 went into effect;
     August 23, 1963. It is the opinion of this
     office and of the Committee who drew up this
     particular Bill who further state that it was
     their intention for this to mean that a fire-
     man was entitled to 'the sum total of his
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Mrs. Marie Hudson, page 2 (C-153 )


     monthly payments' from the date he started
     paying into the Fund.
         "It is further our opinion, however,
    that should a fireman return to active
    duty who had previously been employed as
    a fireman and had previously paid into
    the Fund but resigned before this Section
    went Into effect and again resigns that
    he will not be entitled to receive a re-
    fund of the payments made prior to his
    resignation before the Section went Into
    effect but only to his payments made after
    he rejoined the Fire Department after
    August 23, 1963."
          A statute will be given only a prospective
operation unless the legislative intent to give it a
retroactive effect is clearly apparent. Slate v. Cltv of
Fort Worth, 193 S.W. 1143 (Tex.Civ.App. 1917) and not
then so as to affect vested rights. Hester &'Roberts v.
Donna Irr. Dist. Hidalno County. No. 1, 239 S.W. 992
(Tex.Civ.App. 1922, error ref.). Section 16 of Article I
of the Texas Constitution was intended to protect every
right, which may accruesunder existing laws prior to the
passage of any law, which, If permitted a retroactive
effect, would take away the right. Mellinaer v. Houston,
68 Tex. 37, 3 S.W. 249 (1887).
          Section 1OA (f) of House Bill 35, Acts of the
58th Legislature, 1963, supra, became effective on
August 23, 1963. House Bill 35 amended Section 1OA of
Article 6243e, Vernon's Civil Statutes. Section 1OA (f)
of House Bill 35 creates rather than takes away or
impairs rights acquired under existing law.
          The Intention of the Legislature as to a law is
determined primarily from the plain and ordinary Import
                       Harris Counts v. Smith, 187 S.W. 701,
~,'e2t%T~~~g&%~~    ' The language of Section 1OA (f) of
House Bill 35 Is plain and unambiguous and the intent of
the Legislature to give the section a retroactive effect
is clearly apparent from the language used.



                           -743-
Mrs. Marie Hudson, Page 3 (C-153 :)


          Therefore, on the basis of the authorities
and discussion above, it is our opinion that under the
provisions of Section 1OA (f) of House Bill 35, a fireman,
who was a participating member in a Firemen's Relief and
Retirement Fund on August 23, 1963, and who thereafter
terminates, resigns or leaves the active full-time service
of a fire department for any reason other than those for
which pension benefits will accrue, is entitled to reim-
bursement of all monthly payments made by him, notwithstanding
that payments have been made prior to August 23, 1963. How-
ever, there is no,authority for the retroactive reimbursement
of monthly payments to firemen who were not on full-time
service w,ith a fire department having a Relief and Retirement
Fund on August 23, 1963, even though a fireman may have been
an active full-time fireman prior to August23, 1963.


                       SUMMARY

         Under the provislons,of Section 1OA (f) of
         House Bill 35, a fireman who was a participat-
         ing member in a Firemen's Relief,and Retirement
         Fund on August 23, 1963, and thereafter termi-
         nates, resigns or leaves the active full-time
         service of a fire department for any reason
         other than those for which pension benefits
         will accrue, is entitled to reimbursement of
         all monthly payments made by him, notwithstanding
         that payments have been made prior to August 23,
         1963.
         There is no authority for the retroactive reim-
         bursement of monthly payments to firemen who
         were not on full-time service with a fire depart-
         ment having a Relief and Retirement Fund on
         August 23, 1963, even though a fireman may have
         been an active full-time fireman prior to
         August 23, 1963.
                                                   -   _,




Mrs. Marie Hudson, Page 4 (C-153 )


                               Yours very truly,
                               ,WAGGONER CARR
                               Attorney General




1RWjr:ms:sj                          Assistant

APPROVED:
OPINION COMMITTEE
W. v. Geppsrt, Chairman
Lonny Zwlener
Joseph Trlmble
Rogee Tyler
Fred Ward
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone




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