August 12, 1958 

Mrs. Marie Hudson Opinion No. NW-491 

Firemen's Pension Commissioner 

702 Tribune Building Re: Eligibility of a 

Austin, Texas fireman who was in 

the Military Service, 

to File Statement of 

Intention to claim 

Dear Mrs. Hudson: Prior Service Credits. 

Your request for an opinion reads in part as follows: 

"Section 10-B of the Fireman's Pension 

Law went into effect May 22, 1957. Firemen 

in fully paid Departments were given a 60 

day period in which to file a Statement of 

Intention to Pay on Prior Service. After 

payment was made the Fireman would then be 

entitled to count service on which he had 

not previously contributed. The Houston 

Pension Board has extended this privilege 

to a Fireman who was in military- service, 

through no fault of his own, during the 

60 day period and had no possible way of 

knowing about the 60 day time limit or of 

securing forms on which to file his statement." 

Section 10-B of the Fireman's Pension Law, referred to 

in your letter, was added by House Bill 68, Acts of the 55th 

Legislature,.Regular Session 1957, Chapter 275, Page 617. 

The Section became effective May 22, 1957. 

Vernon's Civil Statutes.) 

(Article 6242e, 

The pertinent part of Section 10-B is as follows: 

"Sec. 10B. Any fireman who is a member of 

a regularly organized 'full paid' fire department 

having a Relief and Retirement Fund and who is not 

participating in such fund, or who is participating 

but has failed to participate in such fund during 

some period of his service as a fireman after 

April 9, 1937, and who desires himself or his 

beneficiaries to participate in such fund or the 

benefits therefrom with full credit under this 
Mrs. Marie Hudson, page 2, Opinion No. WW-491 

Act for all of such fireman's service as a fireman, 

shall, within sixty (60) days after this amending 

section of this Act takes effect, file with the Secr~etary-Treasurer of the Board of Firemen's Relief and 

Retirement Fund Trustees of such fireman's city or 

town a statement in writing under oath that he desires 

to participate in the benefits from such fund with 

full credit for all of his service as a fireman and 

giving the name and relationship of his then actual 

dependents, and he shall therein authorize said 

city or town or the governing body thereof to thenceforth deduct not less than one per centum 

more than seven and one-half per centum (7% ), the 

[g% nor 

exact amount as determined or to be determined by the 

vote of the fire department of which such person is 

a member, from his salary or compensation;. . .' 

The question we are called upon to decide is whether 

that part of Section 10-B which says "shall within 60 days 

after this amending section of this Act takes effect, file 

with the Secretary-Treasurer of the Board of Firemen's Relief 

and Retirement Fund Trustees of such fireman's city or town a 

statement in writing under oath that he desires to participate 

in the benefits from such fund. . ." is mandatory or directory. 

The word "shall" has a mandatory implication, but it is 

not always so used or construed. The courts have held that 

the Fireman's and Policeman's Pension Act should be liberally 

and not technically construed. In the case of Davis v. 

Peters, Tex. Civ. App., 224 S.W. 2d 490, writ refused, the 

Court said: 

"'The purpose of the Act is to provide a 

pension plan for the type of city employee named. 

This purpose should not be defeated by a narrow and 

technical construction of the Act. On the contrary, 

a liberal broad interpretation of the Act should be 

indulged to accomplish the end sought to be attained.'" 

The Supreme Court of this State has laid down a salutary 

rule in this connection which it is our duty to follow. The 

Court in the case of Markowsky v. Newman, 134 Tex. 440, 136 

S.W. 2d 813, quoted with approval from Sutherland's Statutory 

Construction as follows: 

"'Those directions which are not of the 

essence of the thing to be done, but which are 

given with a view merely to the proper, orderly 

and prompt conduct of the business, and by the 
- - 

Mrs. Marie Hudson, page 3, Opinion No. WW-491 

failure to obey the rights of those interested 

will not be prejdbced, are not commonly to be 

regarded as mandatory; and if the act is performed, 

but not in the time or in the precise mode indicated, it will still be sufficient, if that which 

is done accomplishes the substantial purpose of the 

statute.'" 

In a quite recent case by the Supreme Court'Chisholm 

v. Bewley Mills Tex. p. 287 S.W. 2d 943, the 

Court had occasion to consider the Gse of the word "shall" 

in connection with the time of performance of an act and 

stated a rule of construction which we think should govern 

in this matter. In this case, the Court said: 

II 

. . . Provisions which are not of the essence of 

the thing to be done, but which are included for 

the purpose of promoting the proper, orderly and 

prompt conduct of business, are not generally re- . 

garded as mandatory. If the statute directs, 

authorizes or commands an act to be done within 

a certain time, the absence of words restraining 

the doing thereof afterwards or stating the consequences of failure to act within the time specified, 

may be considered as a circumstance tending to 

support a directory construction. See Thomas v. 

Groebl, 147 Tex. 70, 212 S.W. 2d 625; Markowsky V. 

Newman, 134 Tex. 440, 136 S.W. 2d 808; Sutherland, 

Statutory Construction, 3rd Ed. 1943, Vol. 3 p. 95, 

Sec. 5813 et seq.; 82 C.J.S., Statutes, 3 376 et seq., 

p. 869." 

We do not find in this statute any restraining language 

such as "and not thereafter" or ' 

prior service." 

shall forfeit the right to 

We think of no rights of other firemen that 

would be impaired by a ruling that this statute should be 

construed as directory rather than mandatory. The facts 

reveal that the fireman has filed with the Firemen's 

Pension Board in Houston his written intention to comply 

with the statute and the Board has accepted his statement. 

We should not hold this to be a nullity under the facts 

presented by you unless the statute requires it. The 

fireman was in military service and we shall assume that 

he acted with due diligence in filing his statement with 

the Pension Board after becoming aware of the passage of 

Section 10-B of the statute. The acceptance by the Pension 

Board of the belated filing would at least imply this. As 

stated by the Court in this case of Markowsky v. Newman, 

134 Tex. 440, 136 S.W. 2d 813: 
. . 

. 

Mrs. Marie Hudson, page 4, Opinion No. WW-491 

II 

tim;! 

if the act is performed, but not in the 

or in the precise mode indicated, it will 

still be sufficient, if that which is done 

accomplishes the substantial purpose of the 

statute." 

This explicit language of the Court justifies the 

conclusion we have reached that this fireman has sufficiently complied with the statute in regard to his 

prior service record, and you are accordingly so advised. 

SUMMAR-Y 

The 60 day period specified in Section 10-B 

of the Firemen's Pension Law, Acl;s of the 55th 

Legislature, Regular Session: 1357 (Article 6242e, 

Vernon's Civil Statutes) should be ,zonstrued as 

directory and not mandatory, and ,?he filing of such 

written statement after the expir,aC.ion of the 60 day 

period is sufficient if done within a reasonable~ 

time after becoming aware of ?.he effective date of 

the Act. 

VCY truly -yours, 

WILL WILSON 

Attorney iisieral of Texas 

LPL:ba 

APPROVED: 

OPINION COMMITTEE: 

Geo. P. Blackburn, Chairman 

J. Arthur Sandlin 

Wallace Finfrock 

Linward Shivers 

Wayland C. Rivers, Jr. 

REVIEWED FOR THE ATTORNEY GENERAL 

By: W. V. Geppert