                       December 21, 1965


Mrs. Marie Winters                    Opinion No. C- 5'72
Commissioner
Firemen's Pension Commission          Re:   Construction of Section.
Austin, Texas                               lOA(    Article 6243(e),
                                            Vernon's Civil Statutes.
Dear Mrs. Winters:
          In your letter dated September 7, 1965, requesting
an opinion from this office, you submlt certain facts which
we quote in part as follows:
            'We are requesting a ruling from your
       office regarding Section lOA    of the Fire-
       men's Pension Law providing refund of con-
       tributions.
            n
              . . .
            "This particular fireman first started
       participating in the Firemen's Pension System
       February 1, 1949, he resigned March 1, 1949.
       He returned again February 16, 1951 and resfr+ned
       January 22, 1953. He returned October 17, 1954,
       Andyresigned October 16, 1957. No refund was
       made at the time of any of the above reslgnatlons
       because it was not permitted by law.
            "This fireman was again employed by a Fire
       Department January 7, 1958, and started partlclpa-
       tion in the Firemen's Pension System. He resigned
       July 22, 1965.  His period of employment from
       January 7, 1958 to July 22, 1965 was continuous.
       . . .
            With regard to these facts, you ask the following
question:
            11     .whether or not this fireman (or
       any other   fireman in a like case) is entitled
       to refund   of contributions made prior to the
       amendment   to the Pension Law permitting re-
       fund."

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Mrs. Marie Winters, page 2 (C-572)


          In your second letter dated October 26, 1965, re-
auestlna an oolnlon from this office. vou ask a ouestlon which
also requires-a construction of Section lOA    of the Firemen's
Pension Law. Pursuant to your second request, we are incorpor-
sting the following question in this opinion:
          "Whether or not refund to firemen who
     terminate their service is mandatory or must
     a majority of the participating members vote
     to adopt refunding and the Board of Trustees
     approve the adoption of such a program."
          In connection with this question, you state that:
          "It is the opinion of this office and of
     our local Pension Boards that this Section
     means refund Is an optional provision and has
     to be voted Into effect in each Department
     before refund can be mad~e.
          'Three of our largest departments; Houston,
     Amarillo and Corpus Christ1 are not refunding
     and many of :he smaller paid and part-paid
     departments.
          We will answer your questions in the order in which
they are presented.
          Section lOA    of House Bill 35, Acts of the 58th
Legislature, 1963, became effective on Au st 23, 1963. House
Bill 35 amended Section 10A of Article 62 &"
                                           3e, Vernon's Civil
Statutes.
          Section lOA(    Article 6243e, Vernon's Civil Statutes,
provides as follows:
          "(f) In the event a fireman terminates,
     resigns, or leaves the active full-time service
     of the fire department for any reason other than
     those for which pension benefits will accrue, and
     before he receives his twenty (20) year ension
     certificate not having completed twenty i)
                                              20) years
     of active full-time service in the city's fire
     department, he shall receive an amount equal to
     the sum total of his monthly payments made while
     a participating member in the Firemen's Relief
     and Retirement Fund. However, no lump sum pay-
     ment shall be made without prior approval by
     majority vote of the Board of Trustees. The


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Mrs. Marie Winters, page 3 (C- 572)


      adoption of a program to make lump sum payments
      to terminated firemen in the amount of their
      total monthly contributions, subject to approval
      by the Board of Trustees, shall be effective
      upon a majority vote of the participating merffbers
      of the Firemen's Relief and Retirement Fund.
          Attorney General's Opinion No. C-153 (1963) holds
as follows:
            "Under the provisions of Section lOA
      of House Bill 35 /Section lOA(     Article
      6243e, Vernon's CrvI.1Statutes7 a fireman who
      was a participating member in-a Firemen's
      Relief and Retirement Fund on August 23, 1963,
      and thereafter terminates, resigns or leaves
      the active full-time service of a fire depsrt-
      ment for any reason other than those for which
      pension benefits will accrue, is entitled to
      reimbursement of all monthly payments made by
      him, notwithstanding that payments have been
      made prior to August 23, 1963."
           'There is no authority for the retroactive
      reimbursement of monthly payments to firemen who
      were not on fuli-time service with a fire depart-
      ment having a Relief and Retirement Fund on
      August 23, 1963, even though a fireman may have
      been sn active full-time fireman prior to August
      23, 1963.”
           While the holding in Attorney Qeneral's Opinion No.
C-153 (1963) should be clarified In light of the facts submitted,
nevertheless we think It Is applicable here. Therefore, It Is
our opinion that under the facts submitted a fireman Is entitled
to reimbursement of all monthly payments made by him, notwlth-
standing that payments have been made prior to August 23, 1963.
However, he Is not entitled to reimbursement of monthly payments
made by him during those periods of employment terminated by
resignation prior to August 23, 1963.
          Passing now to your second question, ou are advised
that within the above limitations Section lOA(f3 of Article
6243e ves;s those firemen coming within its terms with an absolute
right to . . .receive an amount equal to the sum total of his
monthly payments made while a par$lcipatlng member in the Fire-
men's Relief and Retirement Fund.   The existence of this right
is not dependent upon any action of the Board of Trustees or the
members of the Firemen's Relief and Retirement Fund. The only


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Mrs. Marie Winters, page 4 (C-572)


option which this Section authorizes is with respect to the
question of whether or not the refund is to be made in a lump
sum and may be exercised in one of two ways. (1) A program
may be adopted whereby all terminated firemen entitled to a
refund are to receive such refund In a lump sum. Such a program
may be put into effect by a majority vote of the participating
members of the Firemen's Relief and Retirement Fund, if the Board
of Trustees approves the action of the majority In adopting such
program. (2) In the event no program of lump sum payment has
been adopted then the option of making a lump sum payment in
each Individual case would be left to the decision of a majority
vote of the Board of Trustees,
          We are not concerned with the wisdom or policy of the
statute in this respect. The Legislature has expressed Itself
In clear,and unambiguous language and we must apply and enforce
its mandate as It reads without indulging In conjecture as to
their Intent or resorting to the rules of statutory construction.
53 Tex.Jur.2d 174-175, Statutes, i3123 and cases there cited.
                     SUMMARY
          Under the provisions of Section lOA      of
    House Bill 35 (Section lOA(     Article 6243e,
    Vernon's Civil Statutes), a fireman who was a
     participating member In a Firemen's Relief and
    Retirement Fund on August 23, 1963, and there-
     after terminates, resigns or leaves the active
    -full-time service of a fire d~epartmentfor any
     reason other than those for which pension bene-
     fits will accrue, is entitled to reimbursement
     of all monthly payments made by him, notwlth-
     standing that payments have been made during
     a period prlcr to August 23, 1963.  However,
     he Is not entitled to reimbursement of monthly
     payments made by him during those periods of
     employment terminated by resignation prior to
     August 23, 1963.
          Within the fore olng limitations, Section
     lOA    of Article 62fi
                          se, Vernon's Civil Statutes,
     vests those firemen ctmlng within its terms with
     an absolute right to      .recelve an amount equal
     to the sum total of his monthly payments made while
     a participating member In the Fireman's Relief and
     Retirement Fund." The only option which rests with
     the Board of Trustees or the participating members
     of the Fund Is with respect to whether refund of
     contributions shall be made In a lump sum.


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Mrs. Marie Winters, page 5 (C-572)


                           Very truly yours,
                           WAGGONER CARR
                           Attorney General



                              Ivan R. Williams,   Jr.
                              Assistant
1RWjr:ml:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Malcolm Quick
John Reeves
PhillID Crawford
W. 0. ihultz
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright




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