# The Attorney General of Texas
November 10, 1980 MARK WHITE Attorney General
Honorable Hal H.Hood Firemen’s Pension Commissioner Opinion No. NW-267 503-F, Sam Houston State Office Ble. Austin, Texas 78701 Re: Firemen’s pension benefits
Dear Mr.Hood: You have requested our opinion regarding the proper method under article 6243e, V.T.C.S., of calculating benefits to be paid to a firefighter who is eligible for both disability and service retirement. You do not inquire about and wedonot address constitutional issues. Section 7F of article 6243e, V.T.C.S., describes a procedure whereby the beard oftrustees of alocal firemen’s relief andretirement fund:

may modify or change in any manner whatsoever any of the benefits provided.

. . and may modify or change in any manner whatsoever any of the eligibility requirements for such benefits. Pursuant thereto, the trustees of the Firemen’s Relief and Retirement Fund ofthe city ofBeaumont adopted certain changes in the basis for determining benefits for both service and disability retirement. Under the rules adopted, a fireman becomes eligible for a service retirement benefit if he is at least 55 years of age and has completed 20 years ofservice. Afireman qualifies for adisability retirement benefit:

ifhebecomes disabled from any cause whatsoever for either physical or mental reasons before he meets the requirements to qualify for a [service] retirement benefit. (Emphasis added). Thus, in order to qualify for a disability benefit, a firefighter must become disabled prior to that date on which he has both reached the age of 55 and has accrued 20 years of service. Eligibility for either type of benefit is determined by which set of circumstances occurs first.

p. 850Honorable Hal H.Hood - Page TWO (Ml’-267)

Section 9of article 6243e provides, inpertinent part: If any fireman or one or more beneficiaries of a fireman shall be or become entitled to receive payments from a Fund under the provisions of more than one section of this Act, such fireman or beneficiaries shall be entitled to and shall be required to elect one section under which such payments shall be computed and paid. Although this provision allows a firefighter whoqualifies for both service and disability benefits to elect the most favorable type of retirement, the rules adopted by the Beaumont Board of Trustees do not permit the firefighter to qualify for both kinds of benefit. When an individual qualifies under one retirement formula, he is thereafter ineligible to participate in the other. Asa result, the relevant portion of section 9is not applicable to your inquiry. SUMMARY

Under rules adopted by the board of trustees of the Firemen’s Relief andRetirement Fund ofthe city ofBeaumont, whether a firefighter receives benefits under “service” or “disability” retirement provisions depends upon the provisions under which he first became eligible for retirement.

MARK WHITE Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD E.GRAY HI Executive Assistant Attorney General Prepared byRick Gllpin Assistant Attorney General APPROVED: OPINION COMMD’TEE Susan L.Garrison, Acting Chairman Jon Bible Rick Gilpin Eva Loutzenhiser Bruce Youngblood

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