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 of Galveston, 

Texas, is author,ized to pay 

pension benefits to a wife, 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: 

"The Firemen's Pension Board of Galveston, Texas, 

has requested that I secure your official ruling on 

a matter 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 in the Fire 

Department for more than thirty years and was 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: 

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

'Whenever any person who shall have 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 to his wife, and/or 

dependent child, children or dependent parent, 

the amount herein provided to be paid such 

dependent or dependents in case 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 she would not be 

entitled to widow's benefits in the event of his 

death - as set out in Section 12 - would the Galveston 

Pension Board be permitted to pay benefits to the 

present wife. 

"The Galveston firemen feel that this fireman 

put in more than the required years and met all of 

the other requirements for retirement and that he is 

entitled to the pension which he has rightfully'and 

by Law earned. It would seem to this office that 

benefits should~be paid to his present wife but we 

respectfully request your ruling on the exact interpretation of Sections 17 and 12 as it pertains to 

this particular case." 

Article 6243e. Vernon's Civil Statutes, is known 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 if while in service, any 

member shall die from any cause growing out of and/or 

in consequence of the performance of his duty: or shall 

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

die from any cause whatsoever after he has become 

entitled to an allowance or pension certificate and 

shall leave surviving a widow.,. '+.~. said Board of 

Trustees shall order paid a monthlv allowance as 

follows: (a) to the widow, so lonq as she remain a 

widow and provided she shall have married such member 

prior to his retirement, a sum equal to one-third (l/3) 

of the average monthly salary of the deceased at the 

time of his retirement on allowance or death: . ..(I 

(Emphasis supplied.) 

'nSec. 17. Whenever any person who shall have 

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 

to his wife, .,. dependent parent, the amount herein 

provided to be 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, in part, is constitutional, as the 

present wife did not marry the retired fireman prior to his retirement, she would not be entitled to receive an allowance. 

Section 21 of Article I of the Texas Constitution provides: 

"No conriiction shall work corruption of blood, 

,or forfeiture of estate, and the estate of those who 

destroy their own lives shall descend or vest as in 

case of natural death." (Emphasis supplied) 

In the interpretziire,~ commentary in Vernon's Constitution of 

Texas, it is stated: 

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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 is prbhibited, and it is so explicit 

as to have precluded controversy in the courts on the 

subject." 

In 12 Tex. Jur. 2d 391, Constitutional Law, Sec. 46, it is 

stated: 

"It is the general rule that an unconstitutional 

statute, though having the form and name of law, is in 

reality no law and in legal contemplation is as inoperative as if it had never undergone the formalities 

of enactment. Such a statute leaves the question that 

it purports to settle just as it was prior to its 

ineffectual enactment. It is invalid and imposes no 

duties, confers no rights, creates no office, bestows 

~no power, affords no protection, and justifies no 

acts performed under it." 

The following cases are cited and fully support the above 

statement: 

Miller v. Davis, 136 Tex 299, 159 SW2d 973 (19411, 

136 ALR 177; Colden v. Alexander, 141 Tex 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: 

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L - 

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

. ..Attainders. outlawry, deprivation of 

property except by due process of law, and the 

corruption of blood or forfeiture ,of estate, as ~a 

result of conviction of crime, are expressly 

prohibited by the organic law. Const. art. 1 as 16, 

19-21. Section 21 declares that "no conviction shall 

work a corruption of blood or forfeiture of estate, 

andthe estates of those who destroy their own lives 

shall descend or vest as in case of natural death.' 

II . . . . 

Therefore, it is our opinion that Section 17 of Article 6243e, 

Vernon's Civil Statutes, being clearly in violation of Section 21 

of Article ,I of 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 to be discontinued. The pension checks should be delivered to the retired fireman as provided under the provisions of Article 6243e 

until his death. 

SUMMARY 

Section 17 of Article 6243e, Vernon's Civil 

Statutes, being clearly in violation of 

Section 21 of Article I of our Constitution, 

: the Boar&of Trustees: do not have the 

authority to order the pension allowance 

granted to a retired fireman who has been 

convicted of a felony to be discontinued. 

The pension checks should be delivered to 

the retired fireman as provided under the 

provisions of Article 6243e until his death. 

Yours very truly, 

WAGGONER CARR 

George #. Gray, III 

Assistant Attorney General 

GWG:me 

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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, 

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