E EY GENE 

October 18, 1961 

Mrs. Marie Hudson 

Firemen's Pension Commissioner 

Austin, Texas Opinion No.. W-1168 

Re: Questions relative to 

the construction of Section 6a of Article 

6243e Vernon's Civil 

Dear Mrs. Hudson: Statutes. 

Your request for an opinion presents the 

following questions: 

1.) Whether the additional pension 

benefits provided for In Section 6a 

of Article 6243 automatically became 

applicable on the date that Section 

6a became law, or do the provisions 

of Section 6a become applicable only 

when a qualified fire department votes 

to include the additional benefits in 

pension payments. 

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 'full pa-id' fire 

department and who shall be entitled 

to be retired under the provisions 

of Section 6 of this Act, and who 

shall retire under 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, shall be entitled to be paid 

from the Firemen's Relief and Retlrement Fund of the city or town In which 

he last served, In addition to any 

other benefits provided by this Act, 

an additional monthly pension allowance 

which shall be computed as follows: 

. . e 

"If any person shall die from any 

cause whatsoever and if, at the time of 

death, such person shall have retired 

with or shall have been entitled to 

retire with an additional monthly pension allowance as hereinabove provided 

by this section, and If such deceased 

shall leave surviving him a widow who 

married the deceased prior to his 

retirement, O O Q 

"Provided, however, that the provisions of this section shall not be 

applicable to any particular relief 

and retirement fund until after an 

election has been held and the majority 

of the participating members of that 

respective fund have 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 section numbered Section'6i, 

providing an additional monthly penslon allowance for 

members of "full paidD 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 the provisions of such Section shall 

become a pplicable to a Fund on1 m the vote of the 

members of such Fund; L) -"--($mphasiGdw D O -her 

plain and unambigious language employed by the Legislature in both the caption and the text of the section 

expresses the legislative intent that the provisions are 

to become applicable to a particular Relief and Retirement Fund only upon the election by the majority of the 
Honorable Marie Hudson, page 3 (WW-1168) 

participating members of such fund to include the provisions of the section \;lithin their respective Relief 

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 determined primarily 

from the plain and ordinary import of the language 

employed. 

Therefore, it is our opinion that no rights 

to the additional benefits specified in Section 6a 

vest In the participating members or their survivors 

until the election requirement set out within the 

section is satisfied. 

However, the question remains whether these 

additional benefits are available to retired firemen, 

meaning those persons no longer on active service with 

the department, subsequent to such an election in view 

of the fact that these persons were not active and were 

receiving pension payments at the date of the election. 

It is our opinion that those persons who have 'retired" 

and who have received retirement benefits prior to the 

election discussed above have no right to participate 

in or otherwise receive benefits under 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 

benefits under Section 6a is that he is to be a member 

of a "full paid" fire department. It is evident 

that a person who has retired from actfve duty and who 

is receiving a retirement pension does not have the 

required employment status. Also, there is no language 

in the section which indicates that uptin election 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 ordinarily presumed 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 a 
Honorable Marie Hudson, page 4 (~~-1168) 

statute will not be applied retrospectively, even where 

there is no constitutional impedement against such application, unless it appears by the fair implication derived 

from the language used therein that it was the intention of 

the Legislature to make the statute applicable to both 

the past and present. Thus, the rule of construction 

appears to be that . o O a statute is generally held to 

operate prospectively unless a contrary construction is 

required by 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 

retrospective effect of Section Sa should be permanently 

resolved. 

That portion of the Bill which will constitute 

Section 25A provides as follows: 

'Sec. 25A. After a fireman 

who is a member of a 'full paid' 

fire department at the termination 

of his active service shall terminate 

his active service, the amounts of 

& allowances & benefits which 

& fireman OP his beneficiaries may 

thereafter become entitled &receive 

from a Firemen's Relief & Retirement 

Fund shall & computed, on the basis of 

thf. schedule of allowan,Aes m benefits 

& effect for such Firemen's Relfef and 

Retirement Fund at the time of the 

termination of such fireman"s active 

service.' ' (Emphasisaddeb) 

The fact that the 57th Legislature passed 

H.B. 62 clearly indicates that the Legislature was 

cognizant of the fact that it was perhaps possible to 

construe the present pension benefit provisions 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 this point. 

SUMMARY 

The provisions of Section 6a of 

Article 6243e, Vernon's Civil 
Honorable Marie Hudson, page 5 (WW-1168) 

Statutes, are not applicable to 

any particular Firemen's Relief 

and Retirement Fund of any city or 

town until after an election has 

been held and the majority of the 

participating members of the 

respective funds have elected to 

include the provisions in this 

Section within their respective 

Relief and Retirement Funds. 

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 benefits under 

Section 6a, the election to include 

the provisions of the Section must 

occur prior to the time such person 

terminates his active service as a 

fireman with a "full paid" 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.