Mrs. Marie Hudson

Firemen's Pension 1010 State Office Austin, Texas

Dear Mrs. Hudson:

from this We quote fromyour letter requesting an opinion

office, in part as follows:

October 3, 1963

Commissioner Building
Opinion No. C-153

Re: Construct~ion of H. B. 35, Section 1OA (f),Acts of 58th Legislature, 1963.

"SeveralPensionBoards have re-

. . quested-your opinion on that section of HouseBill 35 amending Section 1OA (f) of the Firemen's PensionLaw which reads in part as follows:
"'In the event a fireman terminates, resigns, or leaves the active full-time service of the fire department for any reason other than those for which pension benefits will accrue . . .he shall receive an amount equal to the,sum total of his monthly paymentsmade while a partlcipat-~' ing member in the Firemen's Relief and RetirementFund.' "Some of the PensionBoard Secretaries are trying to interpret this to mean that a fireman is only entitled to his contributions paid in ,afterHouseBill 35 went intoeffect; August 23, 

### 1963. It is the opinion of this office and of the Committeewho drew up this particularBill who further state that itwas their intention for this to mean that a fireman was entitled to 'thesum total of his -742-Mrs. Marie Hudson, page 2 (C-

### 153 )

monthly payments' from the date he started paying into the Fund.
"It is further our opinion, however, that should a fireman return to active dutywho had previouslybeen employed as a fireman and had previouslypaid into the Fund but resignedbefore this Section went Into effect and again resigns that he will not be entitled to receive a refund of the paymentsmade prior to his resignationbefore the Sectionwent Into effect but only to his paymentsmade after he rejoined the Fire Department after August 23, 1963."
A statutewill be given only a prospective operationunless the legislative intent to give it a retroactiveeffect is clearly apparent. Slate v. Cltv of Fort Worth, 193 S.W. 1143 (Tex.Civ.App.1917) and not then so as to affect vested rights. Hester &'Robertsv. Donna Irr. Dist. Hidalno County.No. 1, 239 S.W. 992 (Tex.Civ.App.1922, error ref.). Section 

### 16 ofArticle I of the Texas Constitutionwas intended to protect every right,which may accrues under existing laws prior to the passage of any law,which, If permitted a retroactive effect,would take away the right. 

### 68Tex. 

### 37, 3 S.W. 249 

### (1887). Mellinaer v. Houston,

Section 1OA (f) of House Bill 35, Acts of the 58th Legislature, 

### 1963,supra,became effective on August 23, 1963. House Bill 35 amended Section 1OA of Article 6243e,Vernon's Civil Statutes. Section 1OA (f) of House Bill 35 creates rather than takes away or impairs rights acquiredunder existing law.

The Intention of the Legislature as to a law is determinedprimarily from the plain and ordinary Import ~,'e2t%T~~~g&%~~ ' Harris Counts v. Smith, 

### 187S.W. The language of Section 1OA (f) of701,
House Bill 

### 35 Is plain and unambiguous and the intent of the Legislature to give the section a retroactiveeffect is clearly apparent from the languageused.

-743-Mrs. Marie Hudson, Page 3 (C-153 :)

Therefore, on the basis of the authorities and discussion above, it is our opinion that under the provisions of Section 1OA (f) of House Bill 35, a fireman, who was a participatingmember in a Firemen's Relief and RetirementFund on August 23, 1963, andwho thereafter terminates,resigns or leaves the active full-time service of a fire department for any reason other than those for which pension benefitswill accrue, is entitled to reimbursement of all monthly paymentsmade by him, notwithstanding that payments have been made prior to August 23, 1963. However, there is no,authority for the retroactive reimbursement of monthly payments to firemenwho were not on full-time servicew,itha fire department having a Relief and Retirement Fund on August 23, 1963, even though a firemanmay have been an active full-time fireman prior toAugust23, 1963.

SUMMARY

Under the provislons,of Section 1OA (f) of House Bill 35, a firemanwho was a participatingmember in a Firemen's Relief, and Retirement Fund onAugust 23, 1963, and thereafter terminates, resigns or leaves the active full-time service of a fire department for any reason other than those forwhich pension benefits will accrue, is entitled to reimbursementof all monthly paymentsmade by him, notwithstanding that payments have been made prior to August 23, 1963. There is no authority for the retroactive reimbursement of monthly payments to firemenwho were not on full-time servicewith a fire department having a Relief and Retirement Fund on August 23, 1963, even though a firemanmay have been an active full-time firemanprior to August 23, 1963.- _,

Mrs. Marie Hudson, Page 4 (C-153 )

Yours very truly, ,WAGGONERCARR Attorney General

1RWjr:ms:sj Assistant

APPROVED: OPINION COMMITTEE W. v. Geppsrt, Chairman Lonny Zwlener Joseph Trlmble Rogee Tyler Fred Ward APPROVED FOR THE ATTORNEY GENERAL By: Stanton Stone

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