August 12, 1958

Mrs. Marie Hudson OpinionNo. NW-491 Firemen's Pension Commissioner 702 Tribune Building Re: Eligibility of a Austin, Texas firemanwho 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 effectMay 22, 1957. Firemen in fullypaid Departmentswere given a 60 day period in which to file a Statement of Intention to Pay on Prior Service. After payment was made the Firemanwould then be entitled to count service on which he had not previously contributed. The Houston Pension Board has extended this privilege to a Firemanwho 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,.RegularSession 1957, Chapter 275, Page 617. The Section became effectiveMay 22, 1957. Vernon's Civil Statutes.) (Article6242e,

The pertinentpart of Section 10-B is as follows: "Sec. 10B. Any firemanwho is amember of a regularly organized 'fullpaid' 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 serviceas a fireman after April 9, 1937, and who desireshimself or his beneficiariesto participate in such fund or the benefits therefromwith full creditunder thisMrs. Marie Hudson, page 2, OpinionNo. WW-491

Act for all of such fireman's serviceas 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'sRelief and Retirement Fund Trustees of such fireman's city or town a statementin 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 ofhis then actual dependents, and he shall therein authorize said city or town or the governing body thereof to thenceforth deduct not less than oneper centum
more than seven and one-halfper centum (7% ), the [g% nor exact amount as determined or to be determinedby the vote of the fire department of which suchperson is a member, fromhis salary or compensation;.

. .' The questionwe are calledupon to decide is whether that part of Section 10-B which says "shall within 60 days after this amending section of thisAct takes effect, file with the Secretary-Treasurerof the Board of Firemen'sRelief and Retirement Fund Trustees of such fireman's city or town a statementin writingunder 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 courtshave held that the Fireman's and Policeman's PensionAct 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 employeenamed. This purpose shouldnot be defeated by a narrow and technical constructionof the Act. On the contrary, a liberal broad interpretationof the Act shouldbe indulged to accomplish the end sought to be attained.'" The Supreme Court of this State has laid down a salutary rule in this connectionwhich it is our duty to follow. The Court in the case of Markowskyv. Newman, 134 Tex. 440, 136 S.W. 2d 813, quotedwith approval from Sutherland'sStatutory Constructionas follows:

"'Those directionswhich 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, OpinionNo. 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 precisemode indicated, it will still be sufficient,if that which is done accomplishesthe substantialpurpose of the statute.'"
In a quite recent case by the Supreme Court'Chisholm v. Bewley Mills Tex. p. 287 S.W. 2d 943, the Courthad occasion to consider the Gse of the word "shall" in connectionwith the time of performance of an act and stateda rule of constructionwhich we think shouldgovern in thismatter. In this case, the Court said: II

. . . Provisionswhich 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 statutedirects, authorizes or commandsan act to be done within a certain time, the absence of words restraining the doing thereof afterwards or statingthe consequences of failure to act within the time specified, may be consideredas a circumstancetending to supporta 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 statuteany 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 impairedby a ruling that this statute should be construed as directoryrather thanmandatory. The facts reveal that the firemanhas filed with the Firemen's Pension Board in Houstonhis written intention to comply with the statuteand the Board has acceptedhis statement. We shouldnot hold this to be a nullityunder the facts presented by you unless the statute requires it. The firemanwas in military serviceand we shall assume that he acted with due diligence in filinghis statementwith the Pension Board after becomingaware of the passage of Section 10-B of the statute. The acceptanceby the Pension Board of the belated filingwould at least imply this. As statedby the Court in this case of Markowskyv. Newman, 134 Tex. 440, 136 S.W. 2d 813:. .

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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 stillbe sufficient,if that which is done accomplishesthe substantialpurpose of the statute." This explicit language of the Court justifies the conclusionwe have reached that this firemanhas sufficiently compliedwith the statute in regard to his prior servicerecord, and you are accordingly so advised.
SUMMAR-Y The 60 day period specifiedin Section 10-B of the Firemen's Pension Law, Acl;sof the 55th Legislature,Regular Session: 1357 (Article 6242e, Vernon's Civil Statutes) shouldbe ,zonstrued as directory and not mandatory, and ,?hefiling of such written statementafter the expir,aC.ion of the 60 day period is sufficientif donewithin a reasonable~ time after becoming aware of ?.heeffectivedate 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