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                                      EY        GENERAL



                                June 24, 1965



        Mrs. Marie Hudson                       Opinion No. C-460
        Firemen's Pension Commissioner
        Sam Houston State Office Bldg.          Re:   Whether a fireman on in-
        AUS tin, Texas                                jury leave at full pay by
                                                      the city, as prwided by
                                                      the Civil Service Act,
                                                      should also receive a dis-
                                                      ability pension from the
                                                      Firemen's Pension Act from
                                                      the date of his injury or
        Dear Mrs. Hudson:                             disability.

                  In your letter requesting an opinion from this office,
        you submit certain facts which we summarize as follows*

                  "We have a request from the Pension Board
             of Port Arthur, Texas, regarding a matter per-
             taining to Section 9 of the Firemen's Pension
             Law.

                 "The Civil Service  Act, Article    1269m, Sec-
            tion 26, V.A.T.S.,  specifies that    a Fireman must
            be placed on injury leave up to one year at his
            full salary. For this reason the fireman in
            question would not apply for disability benefits
            under the Firemen's Pension Act. The fireman
            has passed away and his widow is claiming bene-
            fits from the date the Fireman ceased to carry
            out his regular duties as a Fireman, as pro-
            vided in Section 9. . . .I'

                    With regard to these facts, you ask the following
        question:

                  "Whether or not a fireman on injury leave
             at full pay by the city as provided by the Civil

                                       -2193-
                                                                  ..




Mrs. Marie Hudson, page 2 (C-460)


     Service Act should also receive a disability pen-
     sion from the Firemen's Pension Act from the date
     of his injury or disability."

          Article 1269m, Vernon's Civil Statutes, is known as
the Firemen's and Policemen's Civil Service Act. The purpose
of this Act is evidenced by the language of Section 16a. Sec-
tion 16a is quoted in part as follows:

          "Sec. 16a. It is hereby declared that the
     purpose of the Firemen and Policemen's Civil
     Service Law is to secure to the cities affected
     thereby efficient Police and Fire Departments,
     composed of capable personnel, free from political
     influence, and with permanent tenure of employ-
     ment as public servants. . . .'I

          Section 26 of Article 1269m, Vernon's Civil Statutes,
pertains to sick and injury leaves of absence. The provisions
of Section 26 most pertinent to our discussion, provide as
follows:
          11
               .   .   .




          "Provided that all such cities coming under
     the provisions of this Act shall provide injury
     leaves of absence with full pay for periods of
     time commensurate with the nature of injuries
     received while in line of duty for at least one
     (1) year. . . .u

          Article 62430, Vernon's Civil Statutes, is known as
the Firemen's Relief and Retirement Fund Act. Section 9 of
Article 62430 pertains to the issuance of the certificates of
disability and provides in part as follows:
          II
           . . .

          "Any fireman or beneficiary who shall be
     entitled to receive a pension allowance under
     any provision of this Act shall be entitled to
     receive such allowance from and after the date
     upon which such fireman ceases to carry out his
                             -2194-
tis. Marie Hudson, page 3 (C-460)


    regular duties as a fireman, notwithstandins the
    fact that such fireman ma!?remain on the navroll
    of his fire deoartment or receive sick leave,
    vacation or other oay after the termination of
    his recular duties as a fireman: provided that,
    in the event of a delay resulting.from the re-
    quirements of the first paragraph of this sec-
    tion, such fireman or beneficiary shall, when
    such allowance is approved by the Board, be paid
    the full amount of the allowance which has ac-
    crued since the termination of such fireman's
    regular duties as a fireman." (E%nphasisadded).

          In Citv of Cranse v. Chance, 325 S.W.2d 839 (Tex.Civ.
App. 19591, the court held that Section 53, Article III of the
Texas Constitution, did not prohibit under the provisions of
Section 26, Article 1269m, Vernon's Civil Statutes, the payment
of money to a fireman at the termination of his employment for
accumulated sick leave. The appellant argued that unused, ac-
cumulated sick leave payment at termination of employment would
be a "gratuity" in violation of Section 53 of Article III of the
Texas Constitution. However, the court reasoned that such pay-
ment must be considered a part of the employee's overall compen-
sation.

          It is our opinion, based on Citv of Cranse v. Chance,
sunra, #at any payment of money for injury leave under the
provisions of Section 9, Article 1269m. should also be con-
sidered as a part of the employee's overall compensation, and
that Section 9 is constitutional. As ,theabwe quoted para-
graph of Section 9, Article 6243e, is constitutional, we must
give effect to Its plain and unambiquous language.

          Consequently, it is our opinion that under the pro-
visions of Section 9, Article 62430, a fireman entitled to
receive a pension allowance under the provisions of Article
6243e, Vernon's Civil Statutes, shall be entitled to receive
such allowance from the date upon which fireman ceases to carry
out his regular duties as a fireman, notwithstanding the fact
that such fireman may be on an injury leave of absence with
full pay provided by a city under the provisions of Section
26, Article 1269m, Vernon's Civil Statutes.


                             -2195-
~rs. Marie Hudson, paqe 4 (C-460)


                      SUMMARY

         Under the prwisions of Section 9, Article
    6243e, Vernon's Civil Statutes, a fireman entitled
    to receive a pension allowance under the provisions
    of Article 6243e. Vernon's Civil Statutes, shall
    be entitled to receive such allowance from the date
    upon which such fireman ceases to carry out his
    regular duties as a fireman, notwithstanding the
    fact that such fireman may be on an injury leave
    of absence with full pay provided by a city under
    the provisions of Section 26 of Article 1269m,
    Vernon's Civil Statutes.

                                      Very truly yours,

                                      WAGGOBERCARR
                                      Attorney General



                                            Ivan R. Williams, Jr.
                                            Assistant

1RWjr:mkh:clq

APPROVED:
OPIEIOECCMMITTEE

W. V. Geppert, Chairman
Pat Bailey
Jack Goodman
Linward Shivers
Wade Anderson

APPROVEB FORTHEATTORWEYGEBBRAL
BY: T. B. Wright




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