                       The Attorney             General of Texas
                                        November 10, 1980
MARKWHITE
Attorney General

                   Honorable Hal H. Hood                        Opinion No. NW-267
                   Firemen’s Pension Commissioner
                   503-F, Sam Houston State Office Ble.         Re:   Firemen’s pension benefits
                   Austin, Texas 78701

                   Dear Mr. Hood:

                          You have requested our opinion regarding the proper method under
                   article 6243e, V.T.C.S., of calculating benefits to be paid to a firefighter
                   who is eligible for both disability and service retirement.     You do not
                   inquire about and we do not address constitutional issues.

                         Section 7F of article 6243e, V.T.C.S., describes a procedure whereby
                   the beard of trustees of a local firemen’s relief and retirement fund:

                              may modify or change in any manner whatsoever any
                              of the benefits provided. . . and may modify or
                              change in any manner whatsoever             any of the
                              eligibility requirements for such benefits.

                   Pursuant thereto, the trustees of the Firemen’s Relief and Retirement Fund
                   of the city of Beaumont adopted certain changes in the basis for determining
                   benefits for both service and disability retirement.

                          Under the rules adopted, a fireman becomes eligible for a service
                   retirement benefit if he is at least 55 years of age and has completed 20
                   years of service. A fireman qualifies for a disability retirement benefit:

                              if he becomes disabled from any cause whatsoever for
                              either physical or mental reasons before he meets the
                              requirements to qualify for a [service] retirement
                              benefit. (Emphasis added).

                    Thus, in order to qualify for a disability benefit, a firefighter must become
                    disabled prior to that date on which he has both reached the age of 55 and
                    has accrued 20 years of service. Eligibility for either type of benefit is
                    determined by which set of circumstances occurs first.




                                                    p. 850
Honorable Hal H. Hood - Page TWO (Ml’-267)




     Section 9 of article 6243e provides, in pertinent   part:

           If any fireman or one or more beneficiaries of a fireman shall
           be or become entitled to receive payments from a Fund under
           the provisions of more than one section of this Act, such
           fireman or beneficiaries    shall be entitled to and shall be
           required to elect one section under which such payments shall
           be computed and paid.

Although this provision allows a firefighter who qualifies for both service and disability
benefits to elect the most favorable type of retirement, the rules adopted by the
Beaumont Board of Trustees do not permit the firefighter to qualify for both kinds of
benefit.   When an individual qualifies under one retirement formula, he is thereafter
ineligible to participate in the other. As a result, the relevant portion of section 9 is
not applicable to your inquiry.

                                     SUMMARY

                Under rules adopted by the board of trustees of the
            Firemen’s Relief and Retirement Fund of the city of Beaumont,
            whether a firefighter     receives benefits under “service” or
            “disability” retirement  provisions depends upon the provisions
            under which he first became eligible for retirement.




                                              MARK      WHITE
                                              Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY HI
Executive Assistant Attorney General

Prepared by Rick Gllpin
Assistant Attorney General

APPROVED:
OPINION COMMD’TEE

Susan L. Garrison, Acting Chairman
Jon Bible
Rick Gilpin
Eva Loutzenhiser
Bruce Y oungblood




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