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## EY GENERAL

June 24, 1965

Mrs. Marie Hudson OpinionNo. C-460 Firemen's PensionCommissioner Sam Houston State Office Bldg. Re: Whether a fireman on inAUStin, Texas jury leave at full pay by the city, as prwided by the Civil ServiceAct,

Dear Mrs. Hudson: should also receive a disability pension from the Firemen's PensionAct from the date of his injury or disability.
Inyour letter requestingan opinion from this office, you submit certain factswhich we summarize as follows*

"Wehave a request from the Pension Board of PortArthur, Texas, regarding a matter pertaining to Section 9 of the Firemen's Pension **Law.** "TheCivil Service Act, Article 1269m, Section 26, V.A.T.S., specifies that a Fireman must be placed on injury leave up to oneyear at his full salary. For this reason the fireman in question would not apply for disabilitybenefits under the Firemen's PensionAct. The fireman has passed away and his widow is claimingbenefits from the date the Fireman ceased to carry outhis regular duties as a Fireman, as provided in Section 9.
. . .I' With regard to these facts,you ask the following question: "Whetheror not a fireman on injury leave at full payby the city as providedby the Civil
-2193-..

Mrs. Marie Hudson, page 2 (C-460)

ServiceAct should also receive a disabilitypension from the Firemen's PensionAct from the date of his injury or disability." Article 1269m,Vernon's Civil Statutes, isknown as the Firemen's and Policemen'sCivil ServiceAct. The purpose of thisAct is evidencedby the language of Section 16a. Section 16a is quoted in part as follows:

"Sec. 16a. It is hereby declared that the purpose of the Firemen and Policemen'sCivil Service Law is to secure to the cities affected thereby efficient Police and Fire Departments, composed of capable personnel, free from political influence,and with permanent tenure of employment as public servants.
. . .'I Section 26 of Article 1269m,Vernon's Civil Statutes, pertains to sick and injury leaves of absence. The provisions of Section 26 most pertinent to our discussion,provide as follows:

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. . .

"Providedthat all such cities coming under the provisions of thisAct shall provide injury leaves of absencewith full pay for periods of time commensuratewith the nature of injuries receivedwhile in line of duty for at least one (1)year. . . .u Article 62430,Vernon's Civil Statutes, isknown as the Firemen's Relief and Retirement Fund Act. Section 9 of Article 62430 pertains to the issuance of the certificates of disability and provides in part as follows:

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. . . "Any fireman or beneficiarywho shallbe entitled to receive a pension allowance under any provision of thisAct shallbe entitled to receive such allowance from and after the date upon which such fireman ceases to carry out his -2194-tis. Marie Hudson, page 3 (C-460)
regular duties as a fireman,notwithstandins the fact that such firemanma!?remain on the navroll of his fire deoartment or receive sick leave, vacation or other oay after the termination of his recular duties as a fireman:provided that, in the event of a delay resulting.from the requirements of the first paragraph of this section, such fireman or beneficiary shall,when such allowance is approvedby the Board,be paid the full amount of the allowancewhich has accrued since the termination of such fireman's regular duties as a fireman." (E%nphasis added).
In Citv of Cransev. Chance, 325 S.W.2d 839 (Tex.Civ. App. 19591, the courtheld that Section 53,Article III of the Texas Constitution,did not prohibitunder the provisions of Section 26,Article 1269m, Vernon's Civil Statutes, the payment of money to a fireman at the termination of his employment for accumulated sick leave. The appellant argued that unused, accumulated sick leavepayment at terminationof employmentwould be a "gratuity" in violation of Section 53 ofArticle III of the Texas Constitution. However, the court reasoned that such payment must be considered a part of the employee's overall compensation.
It is our opinion,based on Citv of Cransev. Chance, sunra, #at any payment of money for injury leave under the provisions of Section 9, Article 1269m. should also be considered as a part of the employee's overall compensation, and that Section 9 is constitutional. As ,theabwe quoted paragraph of Section 9, Article 6243e, is constitutional,we must give effect to Its plain and unambiquous language.

Consequently, it is our opinion that under the provisions of Section 9, Article 62430, a fireman entitled to receive a pension allowanceunder the provisions of Article 6243e, Vernon's Civil Statutes, shall be entitled to receive such allowance from the date upon which fireman ceases to carry outhis regular duties as a fireman,notwithstanding the fact that such firemanmay be on an injury leave of absencewith full pay providedby a city under the provisions of Section 26,Article 1269m,Vernon's Civil Statutes.

-2195-~rs. Marie Hudson, paqe 4 (C-460)

SUMMARY Under the prwisions of Section 9, Article 6243e,Vernon's Civil Statutes, a fireman entitled to receive a pension allowanceunder the provisions of Article 6243e.Vernon's Civil Statutes, shall be entitled to receive such allowance from the date upon which such fireman ceases to carry out his regular duties as a fireman,notwithstanding the fact that such firemanmay be on an injury leave of absencewith full pay providedby a city under the provisions **of** Section 26 ofArticle 1269m, Vernon's Civil Statutes. Very trulyyours, WAGGOBERCARR Attorney General

Ivan R. Williams, Jr. Assistant 1RWjr:mkh:clq
APPROVED: OPIEIOECCMMITTEE
W. V. Geppert, Chairman Pat Bailey Jack Goodman Linward Shivers Wade Anderson
APPROVEB FORTHEATTORWEYGEBBRAL BY: T. B. Wright

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