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## THEATTORNEYGENERAL

OF TEXAS

Auwrxiw ?.I.

Texan GROVER SELLERS -N A1TORNEYG*NERAL

Honorable Bayne Satterfield, Commissioner Office of Firemen's Pension Commissioner P, 0. Box 1062 Austin, Texas

Dear Sir: Opinion No. O-6835 Re: Whether a fireman,who has reached twenty years of service after going In the Armed Forces, is eligible to be granted a Service Certificate in accordancewith Sec. 6, Art. 6243e, Title 109,V.A.R.C.S.?

We have goup letter of September 9, 1946, asking for an opinion from this department, based upon the following facts, to-wit:

"Aparticipating fireman served approximately 18 years in his fire department aa an active fireman. Soon after completing the 18 years' service he entered the armed service of ourNation. While serving in the armed service he completed his 20 gears and he is still in the armed service. He has not been an active member of the fire department since he completed his 18 years of service. The question iswhether he is ellglble to be granted a Service Certificate in accordance with theprovisions of Section 6 of the Act-- Article 6243e. Applicant has not reached the age of 55 years. He entered the armed serviceduring the War and National Emergency."
Section 6 of Article 6243e, V.A,R.C,S., to~which you refer,Acts of 1945, 49th Legislature,p- 58, Ch. 4.0, Sec. 1, reads as follows:

"Onand after the 1st day of Ap~ll, A.D. 1939, any personwho hasbeen duly appointed and enrolled, and who has attained the age of fifty-five (55) years and who has served actively for a period of twenty (20)years in some regularly organized fire department in any city OP town in this state now within OP that may come within the provisions of this Act, in any rank,whether as wholly paid, part paid OP volunteer firemen, shall be entitled to beHon. Bayne Satterfield,pnge 2 o-6835

retired from such service or department and shall be entltled to be paid from the Firemen'sRelief and Retirement Fund of that city or town, a monthly pension equal to one-half of hi's average monthly salary not to exceed a maximum of One Hundred Dollars ($100.00)per month; such average monthly salary to be baaed on the monthly average of his salary for the five (5)year peri~od preceding the date of such retirement;provided further, that If his average monthly salary is FI,fty Dollars ($50.00)or less per month or If a volunteer fireman with no salary,he shallbe entitled to a monthlypension or retirementallowance of TwentyfiveDollars ($25.00). Notdlthstandingany other provision of this Act, it is hereby speci~allyprovided that any eligible and 9 ualifled firemanwho shall have completed twenty 20) years of service before reaching the age of fifty-five (55)years may apply to the Board of Trustees for, and It shallbe the Board's duty to Issue a certificate showing the completion of such serviceand showing and certifying that such fireman,when reaching the age of ffftg-five (55)years,will be entitled to the retirement and otherapplicablebenefits of the Act; provided further, thatwhen any fireman shall have been Issued such certificatehe shall, when reaching retirementage, be entitled to all the applicablebenefits of the Act, even though he shall not havebeen engaged in active serviceas a fIreman after the isasuatwe of such certificate. Provided further, that in order to participate In the benefits authorizedunder this Act all persons shall continue to pay into the Firemen'sRelief and Retirement Fund the amounts provlded for all participantsthereunderup to the time of their retirement.'
Incldentally,this particularSection of saidArtLcle 6243ewas construed in Opinion No. O-6583 by Judge Speer to you on or about May 22, 1945, in the following language:

"ThisSection repeats verbatimSection 6 of Chapter 125, Acts of the Regular Session of the 45th Legislature, and adds that portionof the above quotationwhich we have underscored for conveni~ence sake." (TheUnderscoredportionbeing the last half of the Section quoted beginningwith "Notwithstandingany otherprovision," etc., and endIngwith 'up to the time of their retirement.“). -. r

Hon. Bayne Satterfield,page 3 0-6835

"We think it la plain from the specific language of the newly added matter to Section 6 that the Legislature intended that any eligible and qualified fireman,who shall have completed twenty years.of service before reachlngtheage of fifty-fiveyears, would be entitled to the certificate showing such service,whether such completion is before or after the effectivedate of Senate Bill 89, provided it is on or after the 1st day of Appil, A, D. 1939."

: Section 21, ofArticle 6243e, on the computation of

of aervioe,provides that:

"In computing the time or period for retirement for length of serviceas herein provided,-lessthan

^

. length

one year out or aervlce or any time served in the armed forces of the NatIon during war or National emergency shallbe construed as continuous service, but if out more than one year and leas than five (-5) years, credit shall be given for prior service, but' zeF;tj.;n made fop the length of time out of service.

(underscoring ours)

As was said in thisDepartment's OpfnionNo- C-4625 to you in July, 1942:

'It la OUP opinion that Section 21 of the Act (being Sec. 16, Art, 6243e, Title LCg, as codifiedunder Vernon's Annotated Revised Civil Statutes of the State of Texas, Vol. 17, 1946 CumulativeAnnual Pocket Edition) under considerationdoes not distinguish the status of
a ffremanwho resigned from onewho takes a leave of absence, Therefore,where a fireman resigned, or secures a leave of absence for the purpose of entering the armed forces of the Natton during war OP National emergency and does so enter the armed forces, the time he serves in the army durfng such period ofwar or National emergency fa considered continuous service for retFrementpurposes."

In view of the cited pcrtlon of the Firemen'sRelief and Retirement Act, and the various opinions of thisDepartment heretofore rendered on this and kindred phases of the questions propoundedby you and which we have quoted herein,we are of the opinion that a firemanwho has reached twenty (20)years of service,after goin7 Into the armed forces,before reaching the age of fifty-five 55) years, is eligible,under the facts you give us, to be granted a Service Certificateas provided under Article 6243e, and the Sections hereinabove set out.Hon. Bayne Satterfleld,page 4 O-6835

Yours very truly,

ATTORNEY GENERAL OF TEXAS
By s/John L. Wroe John Lo.

Wroe Assistant

JLW:LJ:wc

APPROVED NOV 1, 1946 s/GroverSellers ATTORNEY GENERAL OF TEXAS

Approved Opinion CommitteeBy s/BWB Chairman