OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

**GROVER SELLERS** 

Bo~omble Bspe &tterfleld, Comissioasr Piremncs ?sahm Co8nlssloa **P.** 0. Box 106P tustia, four Dear sirr

IOUr request for au oplafoa ir reads in **part** as follovs:

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% s **city** or fire departmat rcWlre8 a physical ex8siMtioR of sll firemen upoaeaterlag the serriue as a itieua and the city physiciao makesthe exaalnatloa andiiadr that the lPplicuit is phJsical.ly fit except thet haVu hatlag scms~sp%retiou trouble due probablr to MY **1**

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islioaorable Bayus Iktterfisld, p@geQ --ui-1 _:‘-

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fever or dusts the applicant is **duly** l ppoiated

and l urolled aad serves for **more than**  oue year iu the departsnat; would he be eligible for disabillty benefits ii later he becamedisabled from the flue sad/or broaaohitls if it is shownthat they vere sontraoted ia croasequeaoe of the performance of hls duty se a firema?’ Ths tern “leave of l bseace” is not defined la the Aat andve must therefore resort to the generally aacepted meanlaga? this **term,** I$ 18 detlwd ia Webster1s llev mtermtionbl Diotloaary as: "Permlssloa to be speat .I b As ve view Seetloa 21 of Article 62430, it simply meansthat beiore say tlreaan aa7 be eligible for benefit a under this lot, he must have aotaally served oae year contiaUOU81J. Xi a Sireman served oae year coatlnuously and 8ccepts a leave of absence, he would be entitled to benefits oa his return to dut7, slase hs has never severed his connection with the depart-at but has only been absent by psrmisrion, If at the tLmehe accepted a leave of l bseaoe hehad not served one year oontiauously as provided b7 the Act, he vould be~requlred to do so on his return to duty since he vould not be considered as senrly during hlr absence.

%otlon 7 of Artlole 62430 provides: Vheaerer a perron servlag as **an** aotlve flrep1ll0 duly enrolled In any regularly 8ctlve flr0 depart-at in any oity or townia the Wats, aov vithln:or that mayhereafter oostevlthla the hovlsloa; of this **Ao ’** **t,** shall beaomerhgslcally of meatally disabled rhlle la and/or in oonsequeaae of the pertormance of his duty, said Board of Trustees msyi uponhis mqueat, or vlthout such request if it shall deemproper andfor the good of **the** de~rtmnt, retire such person from autive service either upontotal or partial dlsabllit~ as the case maywarrant ad shall order that he be paid from suoh Fund, (a) if for total dlsabflity, anamountequal to one-half the average moathly-~-A..

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Honorable BayneSattsrfleld, page 3

Ulu~ of suah ftreaaa, aot to exoeed the SW ef OneBundredDollars ($100) per month3provided that if rush aTerage **8onthly** salary be Fifty Dsllars ($50) or less per moath, or if he be a volunteer ffi?W with a0 sblary, the uourrt 8o order&paid shall motbs less thaaTventy-fire Dollars (#Qs) per moathj rush average monthly salary to be based on the month average of his salary tar the firs **(5)** yew period, **or so** mwh **themof as**  **he may** **hre** served proeediag the date of suchretirerat) or, (bj if the dlsablllty be less theatotal, then such sumas in tb judgment of the Board of **Trus** tees my be proper andeomseasurate vith the degree of dlsabllity) provided Purthsr, that if and vhen sueh disability shall cease, such retiremea$ or disability l

llowaaee shll be dlscoatinued aad uuchperson shall be restored to active service **at** not less than the sams salary hs resolved at the tims of his retirement for d18ab111ty.” (Undersooriag ours) In atxsverto your seooud questloa, it is our OpLnion that the applicant would be eligible for dlsabllity benefits ii he beoamedisabled from any Cause, if it Is shovn that he becamedisabled vhen In and/or in soaswuenae of PerfOrmante of his duty. Thefaot that he has preolously~beea examined by tb ezuaiaiag physleian vho found.evidence of rt!SPlratory tr0ubl.s vould have nobearlab on his eliglbillty if he vas aacepted iar serriae &Starsuoh exWelaetloa+ The only test contained in this statute IS vhether or not he bvc*w dirabled,. bhlle ia and/or la conrequeaae of the perforsuNWe of his duty.’ Trusting this fully anavsrs your IuWry, ve are Very truly yours 

# By Ka.a A
B. T. BobDonehue

Assistant /----I i: