### EXAS

Mrs. Marie Hudson Firemen's Pension Commissioner 1010 Sam Houston Building Austin, Texas Opinion No.,C-446
Re: Whether, under Section 17 of Article 6243e, V.C.S., the,Board of Firemen's Relief and Retirement Fund Trustees ofGalveston, Texas, isauthor,izedtopay pension benefits to awife, who pensioner married after his retirement, and pensioner is in the penitentiary serving a sentence for a felony. Dear Mrs. Hudson:
Your recent request for an opinion of this office reads in part as follows:

"TheFiremen's Pension Board ofGalveston, Texas, has requested that I secure your official ruling on amatter involving Sections 17 and 12 of the Firemen's Pension Law. (Article 6243e, Vernon's Civil Statutes) "Galveston has a fireman who retired under the provisions of the,Law pertaining to age and service - Section 6. This fireman had served inthe Fire Department for more than thirty years andwas past age 55. After his retirement he re-married. "This retired fireman has been convicted of a felony and given a two-year sentence in the penitentiary. Section 17 of the Firemen's Pension Law states:

-2116-Mrs. Marie Hudson, page 2 (C-446)

'Whenever any person who shallhave been granted an allowance hereunder shallhave been convicted of a felony, then the Board of Trustees shall order the allowance sogranted or allowed such person discontinued, and in lieu thereof, order paid tohis wife, and/or dependent child, children or dependent parent, the amount herein provided tobe paid such dependent or dependents incase of the death of the person so originally granted or entitled to allowance.' "Inasmuch as this fireman married his present wife after his retirement and shewould not be entitled towidow's benefits in the event ofhis death - as set out in Section 12 -would theGalveston Pension Board be permitted topaybenefits to the present wife. "TheGalveston firemen feel that this fireman put inmore than the required years andmet all of the other requirements for retirement and thathe is entitled to thepension which he has rightfully'and by Law earned. Itwould seem to this office that benefits should~be paid tohis present wife but we respectfully request your ruling on the exact interpretation of Sections 17and 12 as itpertains to this particular case."
Article 6243e. Vernon's Civil Statutes, isknown as the Firemen's Relief and Retirement Fund Act. The pertinent provisions of Article 6243e, Vernon's Civil Statutes, are quoted as follows:

"Sec. 12. If any member of any department... who has been retired on allowance because of length of service or disability, shall thereafter die from any cause whatsoever: or ifwhile in service, any member shall die from any cause growing out of and/or in consequence of the performance ofhis duty: or shall

-2117-Mrs. Marie Hudson, page 3 (C-446)

die from any cause whatsoever afterhe has become entitled to an allowance orpension certificate and shall leave surviving awidow.,. '+.~. said Board of Trustees shall order paid amonthlv allowance as follows: (a)to thewidow, so lonq as she remain a widow andprovided she shallhave married suchmember prior tohis retirement, a sum equal to one-third (l/3) of the average monthly salary of the deceased at the time ofhis retirement on allowance or death:
...(I (Emphasis supplied.)
'nSec.17. Whenever any person who shallhave been granted an allowance hereunder shall have been convicted of a felony, then the Board of Trustees shall order the allowance so granted or allowed such person discontinued, and in lieu thereof, order paid tohis wife, .,.dependent parent, the amount herein provided tobe paid such dependent or dependents in case of the death of the person so oriqinallv qranted or entitled to allowance." (Emphasis supplied). If Section 17, above quoted, inpart, is constitutional, as the present wife did not marry the retired fireman prior tohis retirement, shewould not be entitled to receive an allowance. Section 21 ofArticle Iof the Texas Constitution provides:
"No conriictionshallwork corruption ofblood, ,orforfeiture of estate, and the estate of those who destroy their own lives shall descend orvest as in case of natural death." (Emphasis supplied)
In the interpretziire,~ commentary inVernon's Constitution of Texas, it is stated:

-2118-Mrs. Marie Hudson, page 4 (C-446)

"By this broad provision of the Texas Constitution, corruption of blood of forfeiture of estate upon conviction or suicide isprbhibited, and it is so explicit as tohave precluded controversy in the courts on the subject."
In 12Tex. Jur. 2d 391, Constitutional Law, Sec. 46, it is stated:
"It isthe general rule that anunconstitutional statute, though having the form and name of law, is in reality no law and in legal contemplation is as inoperative as if ithad never undergone the formalities of enactment. Such a statute leaves the question that itpurports to settle just as itwas prior to its ineffectual enactment. It is invalid and imposes no duties, confers no rights, creates no office, bestows ~nopower, affords no protection, and justifies no acts performed under it." The following cases are cited and fully support the above statement: Miller v. Davis, 136Tex 299, 159 SW2d 973 (19411, 136ALR 177; Colden v.Alexander, 141Tex 134, 171 SW2d 328 (1943);State v. Shippers Compress &Warehouse co., 67 SW 1049 (Tex.Civ.App. 1902); Bockhorn, In re 62 Crim Rep 651, 138 SW 706;Davis v.Allison x89-SW 968 ~(Tex~. Ciir:App. 1911); Holamn v. Pabst, 27 SW2d 340 (Tex.Civ.App. 1930 Error ref.): Genzer v..Fillip, 134 SW 2d 730 (Tex.Civ. App. 1939:error dismd.judm.car); Cloud v. Cloud, 139 SW2d 826 (Tex.,Civ.App. 1940); Lamar Life Ins. Co. v. Jordan, 163 SW2d 215 (Tex.Civ. App. 1940 error refw;o&); Halsted, In re 182 SW 2d 479 (Tex.Crim. 1944).
See also Davis v. Laning, 19 SW 846 (Tex.Sup. 1892)which holds that under the law of Texas, the estate of one sentenced to imprisonment for life does not descend or vest as in case of death. The Supreme Court stated:

-2119-L -

Mrs. Marie Hudson, page 5 (C-446)

...Attainders. outlawry, deprivation of property except by due process of law, and the corruption ofblood or forfeiture ,ofestate, as ~a result of conviction of crime, are expressly prohibited by the organic law. Const. art. 1as 16, 19-21. Section 21 declares that "no conviction shall work a corruption ofblood or forfeiture of estate, andthe estates of those who destroy their own lives shall descend orvest as in case of natural death.' II

.... Therefore, it is our opinion that Section 17 ofArticle 6243e, Vernon's Civil Statutes, being clearly inviolation of Section 21 ofArticle ,Iof our Constitution, the Board of Trustees do not have the authority to order the pension allowance granted to a retired fireman who has been convicted of a felony tobe discontinued. The pension checks should be delivered to the retired fireman as provided under the provisions ofArticle 6243e until his death.
SUMMARY

Section 17 ofArticle 6243e, Vernon's Civil Statutes, being clearly inviolation of Section 21 ofArticle I of our Constitution, :the Boar&of Trustees:donot have the authority to order the pension allowance granted to a retired fireman who has been convicted of a felony tobe discontinued. The pension checks should be delivered to the retired fireman as provided under the provisions ofArticle 6243e until his death.
Yours very truly,
WAGGONER CARR

George #. Gray, III Assistant Attorney General GWG:me

-2120-- .

Mrs. Marie Hudson, Page 6 (C-446)

APPROVED: OPINION COMMITTEE
W. V. Geppert, Chairman
T. B. Wright Jack Goodman Linward Shivers Sam Lane Wade:.Anderson APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone,

-2121-