                      The Attorney               General of Texas
                                         September       12,   1978
JOHN L. HILL
Attorney General


                   Honorable Hal H. Hood                           Opinion No. H- 12 41
                   Commissioner
                   Firemen’s Pension Commission                    Re: Whether      certain contri-
                   Sam Houston Building                            butions can be refunded to a
                   Austin, Texas 78701                             retired fireman.

                   Dear Mr. Hood:

                          You have requested our opinion regarding whether certain contributions
                   may be refunded to a retired fireman. You state that a particular fireman in
                   Corpus Christi became disabled and began drawing sick leave benefits on May
                   2, 1971. On October 12, 1971, payment for sick leave was terminated, and he
                   was granted a disability pension, retroactive to May 2, the initial date of
                   disability. You ask whether he is entitled to a refund for, compulsory pension
                   deductions withheld from his sick leave payments from May 2 to October 12.
                   We note that, under section 9 of article 6243e, V.T.C.S., a fireman is not
                   prohibited from receiving both sick leave pay and disability benefits for the
                   same period. See Attorney General Opinion C-460 (1965).

                         Section lOA    of article    6243e, applicable   to Corpus Christi, provides
                   that the employing city

                              shall deduct an amount equal to no less than three per
                               cent (3%) nor more than six per cent (6%) from the
                               monthly salary or compensation of each participating
                               member fireman.

                   (Emphasis added).    We have previously held that payment for sick leave
                   constitutes payment of “salary.”    Attorney General Opinion H-860 (1976).
                   Since the statute provides no exception for sick leave pay, we believe that
                   the required pension contribution must be withheld therefrom.

                         We are supported in this view by other portions of article 6243e.
                   Sections lOA and lOA- provide for refund of a fireman’s contributions to
                   the pension fund under certain conditions: 1) he leaves active service for a
                   reason other than those for which pension benefits wilI accrue; and 2) a
                   majority of the Fund’s participating   members have previously approved a




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Honorable Hal H. Hood    -   Page 2        (H-1241)



refund policy.    A disability, whether or not service-related,   is one “for which
pension benefits will accrue” under sections 7 and 7A. Thus, the statute, while
specifically authorizing refunds of contributions where pension benefits are not
available, implies that refunds are not compatible with the payment of such
benefits.   Accordingly, it is our opinion that, in the situation you describe, the
fireman is not entitled to a refund of pension contributions for the period during
which. he was paid for sick leave.

                                  SUMMARY

           A fireman entitled to a disability pension may not receive a
           refund of compulsory pension contributions withheld for a
           period during which he is paid sick leave.




APPROVED:




C. ROBERT HEATH, Chairman
Opinion Committee

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