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October 18, 1961

Mrs. Marie Hudson Firemen's Pension Commissioner Austin, Texas Opinion No.. W-1168

Re: Questions relative to the constructionof Section 6a of Article 6243eVernon's Civil Dear Mrs. Hudson: Statutes.

Your request for an opinionpresents the following questions:

1.) Whether the additionalpension benefits provided for In Section 6a of Article 6243 automaticallybecame applicable on the date that Section 6a became law, or do the provisions of Section 6a become applicable only when a qualified fire departmentvotes to include the additionalbenefits in pensionpayments.

1 Whether Section 6a of Article $5 3e is retroactive In its application and effect.

Article 6243e of Vernon's Civil Statutes Is known as the Firemen's Relief and Retirement Fund Act. Section 6a of the Act was added by amendment in 1957. This section reads in part as follows:

"Sec. 6~. Any fireman who is
a member of a 'fullpa-id'fire department and who shallbe entitled to be retiredunder the provisions of Section 6 of this Act, and who shall retireunder Section 6 or Section 7 or Section 7A with additional time of service and of partiefpatlon in a Fund after the date upon which he became entitled to be retired or with more than twenty-five (25)years.

Honorable Marie Hudson, page 2 (WW-1168)

of service and of participation In a Fund, shallbe entitled to be paid from the Firemen'sRelief and Retlrement Fund of the city or town In which he last served, In addition to any other benefits providedby this Act,
an additionalmonthlypension allowance which shall be computed as follows:

. . e

"If any person shalldie from any cause whatsoeverand if, at the time of death, suchperson shallhave retired with or shallhave been entitled to retire with an additionalmonthlypension allowance as hereinaboveprovided by this section,and If such deceased shall leave survivinghim a widow who married the deceased prior to his retirement, O O Q
"Provided,however, that the provisions of this section shallnot be applicable to any particular relief and retirement fund until after an electionhas been held and the majority of the participatingmembers of that respective fundhave voted to include the provisions contained in this section within that Relief and Retiremen% Fund."

The 1957 amendments to ArtPcle 6243e were enacted as H.B. 68, 55th Texas Legislature,Regular Session, 1957* That portion of the caption to Hefl.68 most pertinent to our discussion is as follows: and by adding thereto a new sectionnumbered Section'6i, providing an additionalmonthlypenslon allowance for members of "fullpaidD fire departments who have additional service after being entitled to retire or after twenty-five (25)years of service; or for widows of such firemen,and providing that theprovisions of such Section shall become a

pplicable to a Fund on1 m the vote of the members of such Fund; -"--($mphasiGdw -her D O L) plain and unambigious language employedby the Legislature in both the caption and the text of the section expresses the legislativeintent that the provisions are to become applicable to a particularRelief and Retirement Fund only upon the electionby the majority of theHonorable Marie Hudson, page 3 (WW-1168)

participatingmembers of such fund to include the provisions of the section \;lithin their respectiveRelief and Retirement Funds. Where a statute is plain and unambi@.ous, it will be enforced according to its words. (1942). Anderson v. Penix, 138 Tex. 596, 161 S.W.2d 455

Also, the case of Harris County v. Smith, 187 S.W. 701 (Civ.App.1916),held that the intent of the Legislature as to a law is to be determinedprimarily from the plain and ordinary import of the language employed.
Therefore, it is our opinion thatno rights to the additionalbenefits specified in Section 6a vest In the participatingmembers or their survivors until the election requirement set out within the section is satisfied.

However, the question remains whether these additionalbenefits are available to retired firemen, meaning those personsno longer on active servicewith the department, subsequentto such an election in view of the fact that these persons were not active and were receivingpension payments at the date of the election. It is our opinion that those persons who have 'retired" and who have received retirementbenefitsprior to the electiondiscussed abovehave no right to participate in or otherwise receivebenefitsunder Section 6a of Article 6243e,Vernon's Civil Statutes.

It must be noted that one of the primary requisites for any fireman to be entitled to any benefitsunder Section 6a is that he is to be a member of a "fullpaid" fire department. It is evident that a person who has retired from actfve duty and who is receiving a retirementpension does not have the required employment status. Also, there is no language in the sectionwhich indicates that uptinelection the benefit provisions of Section 6a are to become retroactive in their effect and application. On the contrary, if there is any doubt as to the intent of the Legislature in this respect> such doubt must be resolved against the precept that the benefit provisions of the Section are retroactive in their application and effect. The case of McCain v. Yost, 278 S.W.2d 398 (Civ.App. 1955),held that the Legislature Is ordinarilypresumed to intend that an enactment shall operate prospectively and not retrospectively. In addition the Supreme Court case of State v. Humble Oil and Refining Company, 141 Tex. 40, 169 S.W.2d 707 (1943)held that aHonorable Marie Hudson, page 4 (~~-1168)

statutewill not be applied retrospectively,even where there is no constitutional impedement against such application,unless it appearsby the fair implicationderived from the languageused therein that it was the intention of the Legislature to make the statuteapplicable to both the past and present. Thus, the rule of construction appears to be that

. o O a statute is generallyheld to operateprospectivelyunless a contrary construction is requiredby the terms. 39 Tex.Jur. 55, Statutes, Sec. 27.

When H.B. 62, 57th Leg., R.S., 1961, becomes effective in November, 1961, as Section 25a of Article 6243e,Vernon's Civil Statutes, the issue as to the retrospectiveeffect of Section Sa shouldbe permanently resolved.

That portion of the Bill which will constitute Section 25Aprovides as follows:

'Sec. 25A. After a fireman who is a member of a 'fullpaid' fire department at the termination of his active service shall terminate his active service,the amountsof & allowances& benefits which & fireman OP his beneficiariesmay thereafterbecome entitled&receive from a Firemen's Relief & Retirement Fund shall& computed, on the basis of thf.scheduleof allowan,Aes m benefits & effect for such Firemen's Relfefand Retirement Fund at the time of the termination of such fireman"s active service.'

' (Emphasisaddeb)

The fact that the 57th Legislaturepassed H.B. 62 clearly indicates that the Legislaturewas cognizant of the fact that it was perhaps possible to construe the present pension benefitprovisions of the Firemen's Relief and Retirement Fund Act as being retroactive in their application and effect. It is our opinion that H.B. 62 clarifies the law on thispoint.

SUMMARY

The provisions of Section 6a of Article 6243e,Vernon's CivilHonorable Marie Hudson,page 5 (WW-1168)

Statutes, are not applicable to anyparticular Firemen's Relief and Retirement Fund of any city or town until after an electionhas been held and the majority of the participatingmembers of the respective fundshave elected to include the provisions in this Section within their respective Relief and RetirementFunds. The provisions of Section 6a are not retroactive in their application and effect. This is to say that in order for a person or his survivors to be entitled to the benefitsunder Section 6a, the election to include the provisions of the Sectionmust
occur prior to the time suchperson terminateshis active service as a fireman with a "fullpaid" fire department.

Yours very truly,

WILL WILSON Attorney General of Texas

1RW:lgh

APPROVED:

OPINION COMMITTEE W. V. Geppert, Chairman

J. Arthur Sandlin John Reeves Bob Eric Shannon

REVIEWED FOR THE ATMRNEY GENERAL BY: Houghton Brownlee, Jr.