              E          QIRNE~          GENE
                          F       EXAS




Mrs. Marie Winters
Commissioner
Fireman's Pension Commission
Sam Houston State Office Building
Austin, Texas
                                Opinion No. c-611
                                Re:   In a town with firemen, widows
                                      and children drawing benefits,
                                      where there is not sufficient
                                      money on hand to pay full
                                      pensions should a paid fireman
                                      who terminates his service be
                                      refunded his contributions from
                                      the State Emergency Reserve
                                      Fund before the pensioners are
Dear Mrs. Winters:                    paid and related question.
         Your recent   letter     to this office requests our opinion
upon the following questions:
         "1 . In a town with firemen, widows and children
    drawing benefits where there is not sufficient
    money on hand to pay,full pension, should a paid
    fireman who terminates his service be refunded
    his contributions from the State Emergency Reserve
    Fund before the pensioners are paid?
          "2 . Many of the pensioners are only drawing
     30% to 50% of their pension. Should the refund
     be made on a pro rated basis? If so, what manner
     of proration would be legal, since any refund of
     contributions is going to reduce the pensions
     even more."
          The conditions and circumstances whereby allocations
may be made from the emergency reserve fund are set forth in
Section 20 of Article 6243e of Vernon's Civil Statutes. The
relevant portions of said Section read as follows:


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Mrs. Marie Winters, page 2 (c-611)


          "Whenever any Board of Trustees shall find
     the fund as herein provided and within their
     control insufficient to meet the demands against
     such funds, such Board of Trustees may make
     written application to the Firemen's Pension
     Commissioner for additional temporary apportion-
     ment from the emergency reserve of such Fund
     such application by the sworn statement of at
     least three (3) members of such Board of Trustees
     showing that the department applying for such
     temporary apportionment has assessed its members
     the maximum assessment provided hereunder,and
     showing further the necessity and reasons for
     such additional temporary apportionment and
     if approved by the Firemen's Pension Commissioner,
     he shall certify his approval to the State
     Treasurer . . . Upon such certificate of approval
     of such application by the Firemen's Pension
     Commissioner the State Treasurer shall pay
     to such applicant Board the sum stated in such
     certificate from the emergency reserve of said
     Firemen's Relief and Retirement Fund and in
     addition to the amount to be paid such Board
     under the regular apportionment as herein
     provided due such Board."
          We find no other provision relating to disbursements
from the emergency reserve fund. This provision does not
authorize any disbursement from such fund to be made to any
individual who Is entitled to benefits or refund of contributions
under the Firemen's Pension Act. Such allocations as are
authorized are to be made to the board of trustees~of the local
fund   Therefore in answer to your first question you are
advised that a tirminated fireman is not entitled to be refunded
his contributions from the emergency reserve fund before
pensioners are paid.
          The provisions of the Firemen's Pension Act do not
provide for any priority of payment as between benefits payable
to retired firemen, widows and children, and the refund of
contributions to terminated firemen. In the absence of some
Legislative expression that such individuals are to be treated
differently insofar as priority of payment is concerned we are
not authorized to engraft upon the applicable statutes a
provision placing one upon a higher footing than another.
          Section 2.5of Article 6243e clearly expresses the
intention of the Legislature that a system of priority not be
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Mrs. Marie Winters, page 3 (C-611,)


resorted to in disbursement of funds under this Act.   Such
Section provides as follows:
         "If for any reason the Fund or Funds hereby
    made available for any purpose covered by this
    Act shall be insufficient to pay in full any
    allowance or disability benefits then all granted
    allowances, or disability benefits shall be
    proratably reduced for such time as such
    deficiency exists,"
           In our opinion, this Section requires a prorata
reduction in all payments authorized by the Act when the
available funds are insufficient to meet the immediate obligations
oarrable. The term uro rata means aCcOrdinQ to orooortion.
Chenoweth v. Nordan'& Morris, 171 S.W.2d 386 (T~x.CIV.AQQ~ 1943,
error refused w.o.m.); Webster's Third New International Dictionary.
Therefore in answer to your second question you are advised
that all &ma payable from a given fund should be proratably
reduced when the fund is insufficient to meet the full obligations.
This would necessarily include refunds of contributions to a
terminated fireman. The determination of the amounts payable
from any particular fund is a mathematical calculation dependent
upon the facts in each instance and is a matter for administrative
determination.

                     SUMMARY
          The refund of contributions to a fireman who
     terminates his service prior to retirement is not
     payable from the emergency reserve fund before
     pensioners are paid; where a particular fund is
     insufficient to meet all disbursements payable
     from it under the Firemen's Pension Act, such
     disbursements including refunds to terminated
     firemen, are to be proratably reduced.
                           Very truly yours,
                           WAGGONER CARR
                           Attorney General


                          BY



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Mrs. Marie Winters, page 4 (c-611.)


WOS:ml
APPROVED:
OPINION COMMITTEE
W: V. Geppert,~Chairman
Malcolm Quick
Gordon Houser
Linward Shivers
Mario Obledo
APPROVEDFOR THE ATTORNEY GENERAL
By: T. B. Wright




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