                      THE   ATTORNEY           GENERAL
                                 OFTEXAS
                             AUSTIN.   TEXAS   78711
CEAWFORD       c. MARTIN
  *T-rORN&Y    CaENERAL



                            February 15, 1967


     Mrs. Marie Hudson Winters'                  Opinion No. M-24
     Firemen's Pension Commissioner
     1010 Sam Houston State Office Bldg.
                                      -         Re: Whether a fireman is
     ~Austln,Texas 78701                            entitled to participate
                                                    In the Firemen's Re-
                                                    lief and Retirement
                                                    Fund under the stated
     pear Mrs. Winters:                             facts.
               You have requested the opinion of this office regard-
     lng the above question, and in this connection you have submitted
     the following facts:
                   'Houston has a fireman who resigned from
              the Fire Bepartment Augusti 19, 1965. He re-
              entered the Houston Fire Department October
              12, 1966, an absence of more than one year.
              This fireman first entered the Houston Fire
              Department November 8, 1955,. At that time
              he was 31 years of age.'
               In determining the pro er answer to your question, we
     must first look to Section lOE(dP , Article 6243e, Vernon's
     Civil Statutes, which reads, In part, as follows:
                    "Each person who shall hereafter become
              a fireman in any such city which has a Flre-
              men's Relief and Retirement Fund in which he Is
              eligible for membership, shall become a member
              of such Fund as a condition of his appointment,
              and shall by acceptance of such position agree
              to make and shall make contributionsrequired
              under this Act of members of such Fund, and
              shall participate in the benefits of membership
              in such Fund as provided In this Act;
              however, that no person shall be eligl%Fi=
                                                       e o
              membership in any such Fund who is more than
              thirty (30) years of age at the time he first
              enters service as a fireman; and provided fUr-
              tier,  that any such person who enters service
                                   - 103 -
Mrs. Marie Hudson Winters, page 2 (~-24)


     as a fireman may be denied or excused from
     membership in the Fund if the Board of Trustees
     of the Fund d.etermlnesthat such person is not
     of sound health. . . ." (Emphasis added.)
          The above'Sectlonwas enacted in 1963, and amended in
1965. At the time of the subject fireman's initial entry Into
service, there was no age limitationfor participationin the
Firemen's Relief and Retirement Fund. In 1963 the fireman In
question was a fu1l.yparticipatingmember of the Firemen's
Relief and Retirement Fund. The statute, by Its terms, did
not, and does not, apply retroactively,but is directed at
persons who first entered service after the effective date of
the act. Wendte frame      fact situation submittedby you that
the fireman in question has had an Interruptionin his service
of something over one year. Thus, his re-entry into the service
doesnot constitutea first entry into service. The words of
the statute are clear, and there Is nothing to Indicate a con-
trary construction. You are therefore advised that it is the
opinion of thls'officethat the said fireman la fully entitled
to participate in the Firemen's Relief and Retirement Fund as a
regular member of his city's Fire Department.
                     SUMMARY
          Under the submitted facts, Article 6243e, Sec-
     tion lOE(d), V.C.S. does not bar the fireman In
     question from participationin the Firemen's
     Relief and Retirement Fund of his city's Fire
     Department.
                                   truly yours,


                                    y General of Texas
Prepared by Malcolm L. &ulck
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Ceppert, Co-Chairman
John Reeves
Z. T. Fortescue
Alan Minter
Dyer Moore
STAFF LECAL ASSISTANT
A. J. Carubbi, Jr.       - 104 -
