             E              EY     GENE




                            October 18, 1961

Mrs. Marie Hudson
Firemen's Pension Commissioner
Austin, Texas                Opinion No..W-1168

                             Re:   Questions relative to
                                   the construction of Sec-
                                   tion 6a of Article
                                   6243e Vernon's Civil
Dear Mrs. Hudson:                  Statutes.
          Your request for an opinion presents the
following questions:
          1.) Whether the additional pension
          benefits provided for In Section 6a
          of Article 6243 automatically became
          applicable on the date that Section
          6a became law, or do the provisions
          of Section 6a become applicable only
          when a qualified fire department votes
          to include the additional benefits in
          pension payments.
               Whether Section 6a of Article
          $513e is retroactive In its applica-
          tion and effect.
          Article 6243e of Vernon's Civil Statutes Is
known as the Firemen's Relief and Retirement Fund Act.
Section 6a of the Act was added by amendment in 1957.
This section reads in part as follows:
               "Sec. 6~. Any fireman who is
          a member of a 'full pa-id'fire
          department and who shall be entitled
          to be retired under the provisions
          of Section 6 of this Act, and who
          shall retire under Section 6 or Sec-
          tion 7 or Section 7A with additional
          time of service and of partiefpatlon
          in a Fund after the date upon which
          he became entitled to be retired or
          with more than twenty-five (25) years
                                                              .




Honorable Marie Hudson, page 2 (WW-1168)

         of service and of participation In a
         Fund, shall be entitled to be paid
         from the Firemen's Relief and Retlre-
         ment Fund of the city or town In which
         he last served, In addition to any
         other benefits provided by this Act,
         an additional monthly pension allowance
         which shall be computed as follows:
         . . e
              "If any person shall die from any
         cause whatsoever and if, at the time of
         death, such person shall have retired
         with or shall have been entitled to
         retire with an additional monthly pen-
         sion allowance as hereinabove provided
         by this section, and If such deceased
         shall leave surviving him a widow who
         married the deceased prior to his
         retirement, O O Q
               "Provided, however, that the pro-
          visions of this section shall not be
          applicable to any particular relief
          and retirement fund until after an
          election has been held and the majority
          of the participating members of that
          respective fund have voted to include
          the provisions contained in this sec-
          tion within that Relief and Retiremen%
          Fund."
          The 1957 amendments to ArtPcle 6243e were
enacted as H.B. 68, 55th Texas Legislature, Regular
Session, 1957* That portion of the caption to Hefl.68
most pertinent to our discussion is as follows:
and by adding thereto a new section numbered Section'6i,
providing an additional monthly penslon allowance for
members of "full paidD fire departments who have additional
service after being entitled to retire or after twenty-five
(25) years of service; or for widows of such firemen, and
providing that the provisions of such Section shall
become applicable to a Fund on1 m     the vote of the
                       -"--($mphasiGdw
members of such Fund; L)D O                    -her
plain and unambigious language employed by the Legis-
lature in both the caption and the text of the section
expresses the legislative intent that the provisions are
to become applicable to a particular Relief and Retire-
ment Fund only upon the election by the majority of the
Honorable Marie Hudson, page 3 (WW-1168)

participating members of such fund to include the pro-
visions of the section \;lithin
                              their respective Relief
and Retirement Funds.   Where a statute is plain and
unambi@.ous, it will be enforced according to its
words.   Anderson v. Penix, 138 Tex. 596, 161 S.W.2d 455
(1942). Also, the case of Harris County v. Smith, 187
S.W. 701 (Civ.App. 1916), held that the intent of the
Legislature as to a law is to be determined primarily
from the plain and ordinary import of the language
employed.
          Therefore, it is our opinion that no rights
to the additional benefits specified in Section 6a
vest In the participating members or their survivors
until the election requirement set out within the
section is satisfied.
          However, the question remains whether these
additional benefits are available to retired firemen,
meaning those persons no longer on active service with
the department, subsequent to such an election in view
of the fact that these persons were not active and were
receiving pension payments at the date of the election.
It is our opinion that those persons who have 'retired"
and who have received retirement benefits prior to the
election discussed above have no right to participate
in or otherwise receive benefits under Section 6a of
Article 6243e, Vernon's Civil Statutes.
          It must be noted that one of the primary
requisites for any fireman to be entitled to any
benefits under Section 6a is that he is to be a member
of a "full paid" fire department. It is evident
that a person who has retired from actfve duty and who
is receiving a retirement pension does not have the
required employment status. Also, there is no language
in the section which indicates that uptinelection the
benefit provisions of Section 6a are to become retro-
active in their effect and application. On the contrary,
if there is any doubt as to the intent of the Legisla-
ture in this respect> such doubt must be resolved
against the precept that the benefit provisions of the
Section are retroactive in their application and effect.
The case of McCain v. Yost, 278 S.W.2d 398 (Civ.App.
1955), held that the Legislature Is ordinarily pre-
sumed to intend that an enactment shall operate
prospectively and not retrospectively. In addition the
Supreme Court case of State v. Humble Oil and Refining
Company, 141 Tex. 40, 169 S.W.2d 707 (1943) held that a
Honorable Marie Hudson, page 4 (~~-1168)

statute will not be applied retrospectively, even where
there is no constitutional impedement against such appli-
cation, unless it appears by the fair implication derived
from the language used therein that it was the intention of
the Legislature to make the statute applicable to both
the past and present. Thus, the rule of construction
appears to be that . o O a statute is generally held to
operate prospectively unless a contrary construction is
required by the terms. 39 Tex.Jur. 55, Statutes,  Sec.
27.
          When H.B. 62, 57th Leg., R.S.,  1961, becomes
effective in November, 1961, as Section 25a of Article
6243e, Vernon's Civil Statutes, the issue as to the
retrospective effect of Section Sa should be permanently
resolved.
          That portion of the Bill which will constitute
Section 25A provides as follows:
               'Sec. 25A. After a fireman
         who is a member of a 'full paid'
         fire department at the termination
         of his active service shall terminate
         his active  service, the amounts of
         &   allowances &    benefits which
         &     fireman OP his beneficiaries may
         thereafter become entitled &receive
         from a Firemen's Relief &     Retirement
         Fund shall & computed,on the basis of
         thf. schedule of allowan,Aesm    benefits
         & effect for such Firemen's Relfef and
         Retirement Fund at the time of the
         termination of such fireman"s active
         service.'' (Emphasisaddeb)
          The fact that the 57th Legislature passed
H.B. 62 clearly indicates that the Legislature was
cognizant of the fact that it was perhaps possible to
construe the present pension benefit provisions of the
Firemen's Relief and Retirement Fund Act as being retro-
active in their application and effect. It is our opinion
that H.B. 62 clarifies the law on this point.

                       SUMMARY
          The provisions of Section 6a of
          Article 6243e, Vernon's Civil
Honorable Marie Hudson, page 5 (WW-1168)

            Statutes, are not applicable to
            any particular Firemen's Relief
            and Retirement Fund of any city or
            town until after an election has
            been held and the majority of the
            participating members of the
            respective funds have elected to
            include the provisions in this
            Section within their respective
            Relief and Retirement Funds.
            The provisions of Section 6a are not
            retroactive in their application and
            effect. This is to say that in
            order for a person or his survivors
            to be entitled to the benefits under
            Section 6a, the election to include
            the provisions of the Section must
            occur prior to the time such person
            terminates his active service as a
            fireman with a "full paid" fire
            department.
                              Yours very truly,
                              WILL WILSON
                              Attorney General of Texas


1RW:lgh


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
J. Arthur Sandlin
John Reeves
Bob Eric Shannon
REVIEWED FOR THE ATMRNEY GENERAL
BY: Houghton Brownlee, Jr.
