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                         THEATTORNEYGENERAL
                                   OF       TEXAS

                                  Auwrxiw    ?.I.Texan
          GROVER SELLERS
          -N
         A1TORNEYG*NERAL




             Honorable Bayne Satterfield, Commissioner
             Office of Firemen's Pension Commissioner
             P, 0. Box 1062
             Austin, Texas
             Dear Sir:               Opinion No. O-6835
                                     Re: Whether a fireman, who has reached
                                          twenty years of service after
                                          going In the Armed Forces, is
                                          eligible to be granted a Service
                                          Certificate in accordance with Sec.
                                          6, Art. 6243e, Title 109, V.A.R.C.S.?

                     We have goup letter of September 9, 1946, asking for an
             opinion from this department, based upon the following facts,
             to-wit:
                     "A participating fireman served approximately
                 18 years in his fire department aa an active
                 fireman. Soon after completing the 18 years'
                 service he entered the armed service of our Nation.
                 While serving in the armed service he completed
                 his 20 gears and he is still in the armed service.
                 He has not been an active member of the fire
                 department since he completed his 18 years of
                 service. The question is whether he is ellglble
                 to be granted a Service Certificate in accordance
                 with the provisions of Section 6 of the Act--
                 Article 6243e. Applicant has not reached the age
                 of 55 years. He entered the armed service during
                 the War and National Emergency."
                     Section 6 of Article 6243e, V.A,R.C,S., to~which you
             refer, Acts of 1945, 49th Legislature, p- 58, Ch. 4.0,Sec. 1,
             reads as follows:
                     "On and after the 1st day of Ap~ll, A.D. 1939,
                 any person who has been duly appointed and enrolled,
                 and who has attained the age of fifty-five (55)
                 years and who has served actively for a period of
                 twenty (20) years in some regularly organized fire
                 department in any city OP town in this state now
                 within OP that may come within the provisions of
                 this Act, in any rank, whether as wholly paid, part
                 paid OP volunteer firemen, shall be entitled to be
Hon. Bayne Satterfield, pnge 2        o-6835


   retired from such service or department and shall
   be entltled to be paid from the Firemen's Relief
   and Retirement Fund of that city or town, a monthly
   pension equal to one-half of hi'saverage monthly
   salary not to exceed a maximum of One Hundred
   Dollars ($100.00) per month; such average monthly
   salary to be baaed on the monthly average of his
   salary for the five (5) year peri~odpreceding
   the date of such retirement; provided further, that
   If his average monthly salary is FI,ftyDollars
   ($50.00) or less per month or If a volunteer fire-
   man with no salary, he shall be entitled to a
   monthly pension or retirement allowance of Twenty-
   five Dollars ($25.00). Notdlthstanding any other
   provision of this Act, it is hereby speci~allypro-
   vided that any eligible and ualifled fireman who
   shall have completed twenty 920) years of service
   before reaching the age of fifty-five (55) years
   may apply to the Board of Trustees for, and It
   shall be the Board's duty to Issue a certificate
   showing the completion of such service and showing
   and certifying that such fireman, when reaching
   the age of ffftg-five (55) years, will be entitled
   to the retirement and other applicable benefits of
   the Act; provided further, that when any fireman
   shall have been Issued such certificate he shall,
   when reaching retirement age, be entitled to all
   the applicable benefits of the Act, even though he
   shall not have been engaged in active service as a
   fIreman after the isasuatwe of such certificate.
   Provided further, that in order to participate In
   the benefits authorized under this Act all persons
    shall continue to pay into the Firemen's Relief
   and Retirement Fund the amounts provlded for all
   participants thereunder up to the time of their
   retirement.'
        Incldentally, this particular Section of said ArtLcle
6243e was construed in Opinion No. O-6583 by Judge Speer to you
on or about May 22, 1945, in the following language:
        "This Section repeats verbatim Section 6 of Chapter
    125, Acts of the Regular Session of the 45th Legislature,
    and adds that portionof the above quotation which we
    have underscored for conveni~encesake." (The Under-
    scored portion being the last half of the Section
    quoted beginning with "Notwithstanding any other pro-
    vision," etc., and endIng with 'up to the time of
    their retirement.“)
.   -.   r




             Hon. Bayne Satterfield, page 3           0 -6835


                     "We think it la plain from the specific language
                 of the newly added matter to Section 6 that the Leg-
                 islature intended that any eligible and qualified
                 fireman, who shall have completed twenty years.of
                 service before reachlngthe age of fifty-five years,
                 would be entitled to the certificate showing such
                 service, whether such completion is before or after
                 the effective date of Senate Bill 89, provided it
                 is on or after the 1st day of Appil, A, D. 1939."
                 Section 21, of Article 6243e,   on the computation of length
             of aervioe, provides that:
    :
                     "In computing the time or period for retirement
                 for length of service
                               ^       as herein provided,-less
                                                 .              than
                 one year out or aervlce or any time served in the
                 armed forces of the NatIon during war or National
                 emergency shall be construed as continuous service,
                 but if out more than one year and leas than five (-5)
                 years, credit shall be given for prior service, but'
                 zeF;tj.;n made fop the length of time out of service.
                           (underscoring ours)
                 As was said in this Department's Opfnion No- C-4625 to you
             in July, 1942:
                    'It la OUP opinion that Section 21 of the Act (being
                Sec. 16, Art, 6243e, Title LCg, as codified under Ver-
                non's Annotated Revised Civil Statutes of the State of
                Texas, Vol. 17, 1946 Cumulative Annual Pocket Edition)
                under consideration does not distinguish the status of
                a ffreman who resigned from one who takes a leave of
                absence, Therefore, where a fireman resigned, or
                secures a leave of absence  for the purpose of entering
                the armed forces of the Natton during war OP National
                emergency and does so enter the armed forces, the time
                he serves in the army durfng such period of war or
                National emergency fa considered continuous service
                for retFrement purposes."
                     In view of the cited pcrtlon of the Firemen's Relief and
             Retirement Act, and the various opinions of this Department here-
             tofore rendered on this and kindred phases of the questions
             propounded by you and which we have quoted herein, we are of
             the opinion that a fireman who has reached twenty (20) years
             of service, after goin Into the armed forces, before reaching
             the age of fifty-five 755) years, is eligible, under the facts
             you give us, to be granted a Service Certificate as provided
             under Article 6243e, and the Sections hereinabove set out.
Hon. Bayne Satterfleld, page 4           O-6835


                               Yours very truly,
                            ATTORNEY GENERAL OF TEXAS
                              By s/John L. Wroe
                                   John Lo.Wroe
                                   Assistant
JLW:LJ:wc

APPROVED NOV 1, 1946
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS

Approved Opinion Committee By s/BWB Chairman
