THEA~ORNEYGENERAL 

OFTEAXAS 

WILL WILSON 

ATTORNEYO~NE-I. 

March 22, 1961 

Mrs. Marie Hudson 

Firemen's Pension Commissioner 

1010 State Office Building 

Austin, Texas 

Opinion No. WW-1066 

Re: Authority of a Firemen's 

Pension Board,to decrease 

the pension of firemen who 

have been retired at inDear Mrs., Hudson: creased amounts. 

In your letter pertaining to the above subject, 

you request the opinion of this office on the question of 

whether the Board of ~Firemen's Relief and Retirement Fund 

,Trustees of the City of Wichita Falls may decrease the pensions of firemen who have been retired at increased monthly 

payments allowed and voted into effect under the alternate 

or selective benefit provisions of Section 6~,of Article 

6243e, Vernon's Civil Statutes , which reads in part as follows: 

"Sec. 6. Any person who has been duly 

appointed and enrolled and who has attained 

the age of fifty-five (55) years, and who 

has served actively for a period of twenty 

(20) years in any rank, whether as wholly 

paid, 

one (1 P 

art-paid or volunteer fireman, in 

or more regularly organized fire 

departments in any city or town in this 

State having a po ulation of less than five 

hundred thousand, 7 500,000) according to the 

last preceding Federal Census, which city 

or town is now within or may come within 

the provisions of this Act, shall be entitled 

to be retired from such service or department 

and shall be entitled to be paid from the 

Firemen's Relief and Retirement Fund of that 

city or town, a monthly pension equal to one 

half (l/2) of his average monthly salary not 

to exceed a maximum of One Hundred Dollars 

($100) per month, except as hereinafter .provided; . . . Provided, further, that any 
Mrs. Marie Hudson, Page 2 (WW-1066) 

regularly organized 'full paid' fire department in any city or town in this State 

now within or that may come within~the provisions of this Act may, upon a majority 

vote of said Board of Trustees, increase 

the maximum pension to One Hundred and Fifty 

Dollars ($150) per month. As amended Acts 

1953, 53rd Leg., p. 352, ch. 82, 5 1; Acts 

1957, 55th Leg., p. 617, ch. 275, # 2.'s 

Your letter ,reads in part as follows: 

"In an effort to protect and preserve their 

pension fund the Board has joined with the Fire 

Department in voting out certain alternative 

increased benefits. Now the Board wants 

to know if it is within'tieir authority to decrease the pension of persons who have already 

beenretired at the increased amounts. 

"It has been the opinion of this office 

that once a manis granted benefits at the 

rate in effect at the time of his retirement, 

that benefit is set - if increased benefits 

are voted into effect the persons on pension 

do not have their ,pension inc,reased and if the 

benefits were lowered then the persons onpension would not be lowered. . . ." 

The claim of ,a vested right of a pensioner to the 

continuance of monthly pension payments at the statutory rate 

in effect at the time of his retirement was denied in the case 

of City of Dallas v. Trammel, 129 Tex. 150, lOl,S.W.2d 1009, 

(1937). The Court held that such rate was subject to change 

by subsequent legislation; that a pensioner's right to continue 

to receive monthly payments from the pension fund after retirement was predicated upon anticipated continuance of the then 

existing,laws and subordinate to the right of the Legislature 

to abolish the system or diminish its benefits. It further held 

that a contribution to the pension fund under that law did not 

give the pensioner a vested right in the pension fund, which 

was a public fund subject to control of the Legislature. 
Mrs. Marie Hudson, Page 3 (WW-1066 

Since a pensioner, under the Trammel case, has 

no vested right to future increased payments, the question 

to be resolved,is whether the Board of Trustees, after exercising the discretionary authority delegated by the Legislature 

by increasing the maximum pension to $150.00, hasthe power 

to subsequently decrease that amount. 

The case of Board of Councilmen v. Brawner, 37 S.W. 

950 (Ky. Ct. App. 1896] cited in our previous letter to you is 

also in ,point on the current question. The Court inthat case 

held that a municipal legislature might abolish a board of 

public works which it had established under discretionary power 

conferred by a statute that made no reference to the power to 

abolish. The Court on rehearing said,the following in a Per 

Curiam opinion reported in 38 S.W. 497: 

"The petition for rehearing in this 

case is based upon the theory.that there 

is something analogous to contract right 

in the tenure by which the members of the 

board of public works of Frankfort hold 

their offices, There is no such analogy. 

They do hold, as do persons holding offices 

created by the legislature, subject to the 

power of the body which created the office 

to abolish it. In each case the power is a 

delegated power. The municipal legislature 

derives its power from the legislature of 

the state, and the general assembly derives 

its power from the constitution. In each 

case the power to create implies and carries 

with it the power to abolish. The general 

assembly is empowered by section 107 of the 

constitution to create county and district 

offices for a term not exceeding four years. 

But it will hardly be contended that, having 

created an office with a term of four years, 

the general assembly may not abolish it in 

two. Nor is there analogy between the case 

at bar and.the illustration of counsel of an 

agency to make a lease for a specified term. 

The principal, through his agent, binds himself by a contract. There is no contract 

right to a statutory office. + . .'I 
Mrs. Marie Hudson, Page 4 (W&1066) 

And in.the case of Wright v. City of Florence, 93 S.E.2d 215, 

(S.C. Sup. 1956) the Court upheld the validity of a city 

ordinance abolishing a Civil Service Commission oreviouslv 

set up by ordinance under a statute permitting the establishment of such a system, but which was silent as to the power to 

abolish. 

Section 3 of Article 6243e, setting forth the composition and powers of the Board of Trustees, provides that the 

Board is to "receive, handle and control, manage and disburse 

such fund for the respective city or town and as such Board 

shall have the power and authority to hear and determine all 

applications for ~retirement, claims for disability, either ,partial or total, and to designate the beneficiaries or persons 

entitled to participate therein or therefrom as hereinafter 

directed. . ." (Emphasis supplied) 

In the interpretation of any statute, "the aim and 

object of construction is to ascertain and enforce the legislative intent, . . o . When the intent is plainly expressed 

in the language of a statute it must be given effect without 

attempting,to construe or interpret~the law. On the other 

hand when it is necessary to construe an act in order to determine its proper meaning, it is settled by a host of decisions 

that the court should first endeavor to ascertain the legis- 

~lative intent, from a,general view of the whole enactment." 

39 Tex. Jur. 167, 168, Statutes, Sec. 90. It is further stated 

in Volume 39 of Texas Jurisprudence, at page 257: "According 

to the above principles of interpretation, an amendment will 

be construed and harmonized with the Act . e 0 to which it is 

added, and of which it forms a part. The court may look ti 

the body of the amendatory act, its title and emergency clause, 

the existing facts or conditions at the time of the amendment, 

and the body of the act amended." 

The emergency clause of the amendment enabling the 

Board of Trustees to increa;le;he maximum pension to $150.00 

reads in part as follows: . 4. The fact that Boards of 

Trustees in many cities and towns under the Firemen?s Relief 

and Retirement Fund desire to increase the monthly pensions 

of firemen under the Act, and the fact that all the present 

funds are not being used by the Board of Trustees, and the 

further fact that there are a large number of needy firemen who have served the public well and fulfilled all of the 

requirements to obtain such pension and such pension is inadequate for a living wage, create an emergency . a .I1 Acts 

53rd,Leg. R.S. 19.53, ch. 82, p. 354. When read in conjunction 

with the general provisions of Section 3 of Article 6243e 
Mrs. Marie Hudson, Page 5 (W-1066) 

quoted above, it appears that the Legislature intended to vest 

the Board of Trustees with discretion to control, manage and 

disburse such fund, with respect to the alternate benefits, 

under such conditions as current circumstances may justify, 

and that the Board may, by majority vote, decrease the alternate 

benefit pensions of those retired at the increased rate. 

SUMMARY 

The Board of Firemen's Relief and Retirement 

Fund Trustees of the City of Wichita Falls, 

Texas, may decrease the pensions of firemen 

who have been retired at increased monthly 

payments allowed and voted into effect under 

the alternate or selective benefit provision 

of Section 6 of Article 6243e, Vernon's Civil 

Statutes. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

By'*&'- 

Dudley D. McCalla 

Assistant 

DDM:hmc 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Martin De Stefeno 

Thomas Burrus 

Maston Courtney 

Lawrence Hargrove 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Morgan Nesbitt