- .




                    TRE               ORNEY

                                  OF     TEXAS

anncE rBAN,El.                   AUSTINSI.TEXAS
.\P*I>IIxI1Y
        Ili*:s3mL\r.
                                      August   31, 1950


         Hon. G. F. Williams                        Opinion No. V-1101
         Firemen’s  Pension Commissioner
         702 Tribune Building                      Re:    Legality of counting
         Austin, Texas                                    years during which a
                                                          fireman’ drew disability
                                                          compensation   as years
                                                          of continuous active
                                                          service toward retire-
                                                          ment.

         Dear   Sir:

                       Your request   for an op.inion from    this office   reads,
         in part,    as follows:

                     “We desire the opinion of your office regard-
                ing the legality of a local Pension Board in a cer-
                tain City granting a Certificate  of Eligibility to a
                Fireman which requires twenty years of active
                service and 55 years of age.

                     ‘The Fir~eman in question entered the Fire
                Department    in 19.29, retired on disability    in 1943,
                drew disability   compensation     through 1944-45-46
                a&a    part of 1947, then returned to active service
                on regular Fire Department.pay          and is now re-
                questing a Certificate    of Eligibility   for twenty
                years of service and 55 years of age. It would be
                necessary   that he count these years that he has
                been drawing disability compensation          as con-
                tinuous service   to be eligible for the certificate.

                     ““The question is - Would this man be per-
                mitted to count 1943 through a part of 1947 as con-
                tinuous active service?   *

                    Article  6243e, V.C.S., contains the provisions of the
        Firemen’s    Relief Pension Fund. Section 6 of this article estab-
        lishes the requirements     which must be met before a fireman
        qualifies~ to receive the monthly age and service retirement
        pension.   Section 6 reads, in part, as follows:

                     “Any person who has been duly appointed
                and enrolled and who has attained the age of fifty-
                five (55) years, and who has served actively for a
                                                                               . -




 Hon. G. F. Williams,    page 2 (V-1101)




       period of twenty (20) years in one or more
       regularly  organized Fire Departments      ~~~
       shall be entitled to he retired ~ ~ ~ “(Emphasis
       added)

            Section 21 of Article 6243e, V.C.S.,  contains    the
standards   for computing the length of service required       for re-
tirement.    This section reads, in part, as follows:

            “In computing the time or period for re-
       tirement for length of service as herein pro-
       vided, less than one year out of service or any
       time served in the armed forces of the Nation
       during war or National emergency      shall be con-
       strued as continuous service,   but if out more
       than one year and less than five (5) years, credit
       shall be given for prior service,  but deduction
       made for the length of time out of service ~ o 0m


            The wording of the statute is clear.   Any time spent
in the armed forces is considered    continuous se~rviee, but this
is the only absence for over a year that is considered    continuous
services.  All other absences for over a year, including disability
absences,   since they are not excepted,  shall be deducted as “time
out of service.”

           Section 7 of Article  6243e specifically covers retire-
ment for d~isability.  After covering in detail the methods of quali-
fying for disability pay, the section then reads as follows:

            u
              0 0 0 provided further, that if and when such
      disability   shall cease, such retirement   or-disability
      allowance shall be discontinued     and such person
      shall be restored to active service at not less than
      the same salary he received at the time of his re-
      tirement for disability.”    (Emphasis   added)

             It is an accepted rule of statutory construction     that a
statute is passed as a whole and not in parts or’ sections.         Conse-
quently, each part or section should be construed in connection
with every other part so as to produce a harmonious          whole.   2
Sutherland on Statutory Construction        (3rd Ed. 1943) 336.  Applying
this rule of construction    to a reading of Section 7 on disability
pensions,   and Section 6 on age and service pensions,, as parts of
Article 6243e on the Firemen”s       Relief Pension Fund, it is apparent
that the Legislature    meant to distinguish between these two types
of pensions.     The fact that Section 7 on disability pensions spe-
cifically requires restoration     to active service following thedisability
Hon. G. F. Williams,   page 3 (V-1101)




indicates that the time spent receiving disability pension pay
is not considered active service as required in Section 6.

            In the case of State ex rel Kine v. Board of Trustees
of Firemen’s    Pension Fund of Kansas City, 192 MO. App. 583, 184
S.W. 929 (1916), involving a construction   of the word “service”
as used in a city firemenDs retirement    program,   the court held
that service meant ‘?he act of serving, the labor performed       or
duties required of a fireman.”

            Furthermore,    Section 26 of Article 6243e defines “ac-
tive firemen” or “active members”       as “all paid firemen who re-
ceive regular salaries    as firemen and such partly paid or volunteer
firemen as in each calendar year answer at least twenty-five      (25)
per cent of all fire alarms and at least forty (40) per cent of all
drill or practice calls.”

           From the facts submitted,  it does not appear that the
applicant herein would come within either of the active categories
specified above during the years when he received the disability
pension.  We agree with your conclusion    in this respect, and your
question is accordingly answered in the negative.

                            SUMMARY

            Years during which a fireman drew disability
       compensation   should not be considered  years of active
       service for the purpose of qualifying for firemen’s
       age and service monthly retirement    pension.

                                   Yours   very truly,

APPROVED:                          PRICE    DANIEL

Willis E. Gresham
Antitrust Division

Everett Hutchinson
Executive Assistant                               Assistant

Charles D. Mathews
First Assistant


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