Honorable Marie Winters          Opinion No. M- 1165
Firemen's Pension Commissioner
503-F Sam Houston Building       Re:   Whether the Chief of the
Austin, Texas 10701                    Fire Department (under
                                       Article 1269m. V.C.S.)has
                                       sole authority to place a
                                       fireman on disability re-
                                       tirement or demand he re-
                                       turn to work, or whether
                                       the local Pension Boards
                                       have the authority to de-
                                       termine (under Art. 6243e,
                                       V.C.S.) the degree and
                                       date of the fireman's dis-
                                       ability? If Art. 1269m,
                                       Sec. 9, is controlling,
                                       what is ita constitutional
Dear Mrs. Winters:                     effect upon Art. 6243e?

     Your original opinion request, together with your supple-
mental request, ask the following questions:

          Whether the Chief of the Fire Department under
     Article 1269m, Section 9, Vernon's Civil Statutes,
     has sole authority to put a fireman on disability
     retirement or demand he return to work, or whether
     the local Pension Boards have the authority to de-
     termine the degree and date of disabili.ty as pro-
     vided in Article 6243e, Section 7, Vernon's Civil
     Statutes, known as the Firemen's Relief and Retire-
     ment Law. If Article 1269m, Sec. 9, is controlling,
     what is its constitutional effect upon Article 6243e?

     Article 1269m  was originally enacted in 1947, Article 6243e
was originally enacted in 1937. In 1957 the relevant sections of
both Articles were amended at the Regular Session of the 55th

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Legislature.  As amended, these Sections have remained extant
to this time, The relevant portion of Article 1269m, Section 9,
reads:

          'When a Fireman or Policeman is given a physical
     examination to determine if he is physically able to
     continue his duties, the physician appointed by the
     Commission to make such examination shall submit a
     complete physical report to the Chief of the Fire
     Department if the person so examined is a Fireman,
     and to the Chief of the Police Department if the
     person so examined is a Policeman.   The Chief of each
     resoective Department shall be the sole judqe as to
     whether or not such Fireman orPoliceman   is able to
     continue his duties,"   (Emphasis added.)

     The relevan:: portion of Article 6243e is that portion of
Section 7 which reads:

           "Whenever a person serving as an active fire-
     man duly enrolled in any regularly active fire de-
     partment in any city or town intha State having a
     p.opulation of less ~than five hundred thousand
      ISOO,OOO) aczor,ding to the last preceding Federal
     Census, which city or town is now within, or may
     hereaftar come within the provisions of this Act,
     shall become physically or mentally disabled while
     in and/or in consequence of, the performance of his
     duty, said Board of Trustees shall upon his request,
     or without such request if it shall deem proper and
     for the good of the department, retire such person
                                         tal or partial dis-
     &ilitv as the case may warrant D . Se' (Emphasis added.)

     When there is no direct and irreconcilable conflict between
two statutes they will be construed to give effect to both stat-
utes. International Services       v. Jackson, 335 S.W.2d 420
(T.ex.Civ.App. 1960, errc'r ref. n.r,e.), There is also the pre-
sumption that where there is no expre 8s repeal in the enactment
of a new law thai- ,the Legislatilre Intended 311 prior sta.tutes
to remain in effect. Cunninqham v. Henry, 231 S.W.2d 1013

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Honorable Marie Winters, page 3    (M-1165)



(Tex.Civ.App. 1950, error ref. n.r.e.). Texas does not favor
repeal of laws by implication.  Halsell V. Texas Water Comm.,
380 S.W.Zd 1 (Tex.Civ.App. 1964, error ref. n.r.e.): American
Canal Co. v. Dow Chemical Co., 380 S.W.2d 662 (Tex.Civ.App.
1964, error dism.).

     Ordinarily, where an irreconcilable conflict exists be-
tween two statutes and no provision for repeal is in either,
the general rule is: In construing acts passed at the same
session of the Legislature which do not have an express re-
peal and which have an irreconcilable conflict between them,
the whole must be taken and construed as one act (i.e., the
original act and its amendment).   The one passing the last
House of the Legislature later in time will control and be
the effective act, regardless of when it was approved or
signed or to become effective.   Townsend v. Terrell, 118 Tex.
463, 16 S.W.2d 1063 (1929); Wrisht v. Broeter, 145 Tex. 142,
196 S.W.Zd 82 (1946); Ex parte Maria de Jesus de la 0, 227
S.W.2d 212 (1950).

     The amendment to Article 1269m was contained in House Bill
No. 79 (Acts 55th Leg., R.S., 1957, ch. 391, p. 1171). This
Bill passed the House on March 5, 1957; the Senate amended the
bill and passed it on May 16, 1957. Article 6243e was amended
by House Bill No. 68 (Acts 55th Leg., R.S., 1957, ch. 275,
p. 617). House Bill No. 68 passed the House on April 16, 1957,
and passed the Senate on May 9, 1957. House Bill No. 79, amend-
ing Article 1269m passed both Houses later in time. However,
the caption of the 1957 amendment to Article 1269m was faulty.
It omitted any reference to Section 9, or the fact that this
Section of the act was to be amended by adding the subject para-
graph or that the subject matter was to be added in any manner.
The body of the Act specifically includes Section 9 and the
amendment thereto (Sec. 2 of the Act).

     Article III, Section 35 of the Texas Constitution reads in
it3 relevant parts   "No bill . . . shall contain more than one
subject, which shall  be expressed in its title. But if any sub-
ject shall be embraced in an act which shall not be expressed in
the title, such act shall be void only as to so much thereof,
as shall not be so expressed."

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     In White v. State, 440 S.W.Zd 660 (Tex.Crim. 1969), the
court said, II . . . A somewhat stricter rule of conformity of
title to subject matter legislated on in body of the act is
applied to amendments than to titles of original acts. . . ."
(at p. 665). The court also stated:     "It is well established
that when the title of an original act embraces matters covered
by an amendment, the title or caption of the amendment need not
state the subject of the law amended or specify the nature of
the proposed amendment, but new substantive matter in the amend-
ment, not germane to the provision amended, is invalid as leg-
islation on matters not expressed in the title of the amendatory
act."' (at p. 665). Rutledge v. Atkinson, 101 S.W.2d 376 (Tex.
Civ.App. 1937, no writ): Walker v. State, 116 S.W.2d 1076 (Tex.
Crim. 1938, no writ); Ex parte Heartsill, 38 S.W.2d 803 (Tex.
Crim. 1931).

     Since the caption to the 1957 act which amended Section 9
of Artic!le 1269m is faulty, the amendment is invalid and uncon-
stitutional.   As a result, Article 6243e, giving the local pen-
sion boards the authority to determine the degree anddate of a
fireman's disability, is the existing law to be followed.

                         SUMMARY

          Since the caption or title of the act amending
     Section 9 of Article 1269m. V.C.S., is faulty, the
     amendment is invalid and unconstitutional.   Article
     6243e, V.C.S., giving the local pension boards the
     authority to determine the degree and date of a fire-
     man's disability,                  law to be followed.




Prepared by Linda Neeley
Assistant Attorney General

APFROVEDs
CPSNION COMMITTEE
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KerhS Taylor, Chairman
W.E. Allen, Co-Chairman

Kenneth Nordquist
Jack Goodman
Roland Allen
Austin Bray

SAMUEL D. McDANIEL
Staff Legal Assistant

ALFREDWALKER
Executive Assistant

NOLAWHITB
First Assistant




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