              OFFICE        OF THE ATTORNEY GENERAL            OF TEXAS
                                      AUSTIN
GROVER    SELLERS




Bo~omble Bspe &tterfleld,                      Comissioasr
Piremncs ?sahm Co8nlssloa
 P.   0. Box 106P
tustia,    four

Dear sirr
                                                                          1

                                                                          c
               IOUr request    for           au oplafoa   ir
reads      in part as follovs:                                            is
                    l
                        I). ..




                %         s city   or fire
                                    departmat rcWlre8 a
          physical        ex8siMtioR    of sll
                                        firemen upoa eater-
          lag the serriue as a itieua     and the city physi-
          ciao makes the exaalnatloa and iiadr that the lP-
          plicuit is phJsical.ly fit except thet ha Vu hat-
          lag scms ~sp%retiou trouble due probablr to MY
                                                                              --ui-1
                                                                    _: ‘-
                                                                        403



lioaorable    Bayus Iktterfisld,      p@ge Q



      fever   or dusts the applicant is duly lp p o ia ted
                                                         and
      lurolled   aad serves for more than oue year iu the
     departsnat; would he be eligible     for disabillty
     benefits    ii later he became disabled from the flue
     sad/or broaaohitls    if it is shown that they vere
     sontraoted ia croasequeaoe of the performance of
     hls duty se a firema?’

              Ths tern “leave of lbseace” is not defined   la the
Aat and ve must therefore resort to the generally aacepted
meanlag a? this term, I$ 18 detlwd ia Webster 1s llev mter-
mtionbl Diotloaary as:    "Permlssloa
                              b
                                      to be speat .I
           As ve view Seetloa 21 of Article 62430, it simply
means that beiore say tlreaan aa7 be eligible   for benefit a
under this lot, he must have aotaally   served oae year contia-
UOU81J. Xi a Sireman served oae year coatlnuously and 8c-
cepts a leave of absence, he would be entitled to benefits
oa his return to dut7,  slase hs has never severed his connec-
tion with the depart-at    but has only been absent by psrmis-
rion,  If at the tLme he accepted a leave of lbseaoe he had
not served one year oontiauously as provided b7 the Act, he
vould be~requlred to do so on his return to duty since he
vould not be considered as senrly during hlr absence.
              %otlon   7 of Artlole    62430 provides:

             Vheaerer a perron servlag as an aotlve flre-
     p1ll0duly enrolled In any regularly 8ctlve flr0 de-
     part-at    in any oity or town ia the Wats, aov
     vithln:or     that may hereafter ooste vlthla the ho-
     vlsloa;   of this Ao’t, shall beaome rhgslcally   of
     meatally disabled rhlle la and/or in oonsequeaae
     of the pertormance    of his duty, said Board of
     Trustees msyi upon his mqueat, or vlthout such
     request if it shall deem proper and for the good
     of the de~rtmnt,      retire such person from autive
     service either upon total or partial dlsabllit~      as
     the case may warrant ad shall order that       he be
     paid from suoh Fund, (a) if for total dlsabflity,
     an amount equal to one-half the average moathly
                                                                         -~-A..   .
                                                                                            -II”-.-   ‘.   ~4

                                                                                      404


Honorable Bayne Sattsrfleld,            page 3



      Ulu~  of suah ftreaaa,  aot to exoeed the SW ef
      One Bundred Dollars ($100) per month3 provided that
      if    rush aTerage      8onthly   salary
                                        be Fifty Dsllars
      ($50) or less per moath, or if he be a volunteer
      ffi?W   with a0 sblary, the uourrt    8o order&paid
      shall mot bs less thaa Tventy-fire    Dollars       (#Qs)
      per moathj rush average monthly salary to be based
      on the month average of his salary tar the firs
      (5) yew period, or so mwh themof as he may hre
      served   proeediag the date of such retirerat)
      or, (bj if the dlsablllty     be less thea total, then
      such sum as in tb judgment of the Board of Trus-
      tees my be proper and eomseasurate vith the de-
      gree of dlsabllity)    provided Purthsr,   that if and
      vhen sueh disability    shall cease, such retiremea$
      or disability   lllowaaee shll    be dlscoatinued aad
      uuch person shall be restored to active service                                                       i:

      at not    less   than    the   sams salary   hs resolved    at
      the tims of his retirement            for d18ab111ty.” (Under-
      sooriag ours)
             In atxsver to your seooud questloa,   it is our OpLn-
ion that the applicant would be eligible       for dlsabllity     bene-
fits ii he beoame disabled from any Cause, if it Is shovn that
he became disabled    vhen In and/or in soaswuenae       of PerfOrm-
ante of his duty. The faot that he has preolously~beea exam-
ined by tb ezuaiaiag physleian vho found. evidence of rt!SPlra-
tory  tr0ubl.s vould  have no bearlab on his eliglbillty       if he vas
aacepted iar serriae &Star suoh exWelaetloa+         The  only   test
contained in this statute IS vhether or not he bvc*w dir-
abled,. bhlle ia and/or la conrequeaae of the perforsuNWe of
his duty.’
             Trusting    this fully      anavsrs   your IuWry,         ve are
                                                     Very truly    yours



                                                 By
                                                  Ka.a AB. T. Bob Donehue
                                                                Assistant
                                                                          /----I
