### THEA~ORNEYGENERAL
OFTEAXAS

**WILL** WILSON ATTORNEYO~NE-I. March 22,

### 1961

Mrs. Marie Hudson Firemen's Pension Commissioner 1010 State Office Building Austin, Texas OpinionNo.

### WW-1066
Re: Authority of a Firemen's Pension Board,todecrease the pension of firemenwho have been retired at inDear Mrs.,

Hudson: creased amounts.
In your letterpertaining to the above subject, you request the opinion of this office on the question of whether the Board of~Firemen'sRelief and Retirement Fund ,Trusteesof the City ofWichita Fallsmay decrease the pensions of firemenwho have been retired at increasedmonthly payments allowed and voted into effectunder the alternate or selective benefitprovisions of Section 6~,of Article 6243e,Vernon's Civil Statutes,which reads in part as follows:



### "Sec. 6. Any personwho 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 Part-paid or volunteer fireman, in ormore regularly organized fire departments in any city or town in this State having a po ulation of less than five hundred thousand,

7500,000)according to the last preceding Federal Census, which city or town is now within ormay comewithin the provisions of this Act, shall be entitled to be retired from such service or department and shall be entitledto be paid from the Firemen'sRelief and Retirement Fund of that city or town, a monthly pension equal to one half (l/2)of his averagemonthly salarynot to exceed a maximum of One Hundred Dollars ($100)permonth, except as hereinafter .provided;

. . . Provided, further, that anyMrs. Marie Hudson, Page 2 (WW-1066)

regularly organized 'fullpaid' fire department in any city or town in this State now within or that may comewithin~theprovisions of this Actmay, upon a majority vote of said Board of Trustees, increase themaximum pension to One Hundred and Fifty Dollars ($150)permonth. As amended Acts 1953, 53rd Leg., p. 352, ch. 82, 5 1; Acts 1957, 55th Leg., p. 617, ch. 275, # 2.'s

Your letter ,readsin part as follows:

"In an effort to protect and preserve their pension fund the Board has joinedwith the Fire Department in voting out certain alternative increasedbenefits. Now the Boardwants to know if it iswithin'tieir authority to decrease the pension of personswho have already beenretired at the increased amounts.
"It has been the opinion of this office that once amanis granted benefits at the rate in effect at the time of his retirement, that benefit is set - if increasedbenefits are voted into effect the persons on pension do not have their ,pensioninc,reased and if the benefitswere lowered then the persons onpensionwould not be lowered.

. . ."
The claim of ,avested right of a pensioner to the continuanceof monthly pension payments at the statutoryrate in effect at the time of his retirementwas 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 receivemonthly payments from the pension fund after retirement was predicatedupon anticipated continuance of the then existing,lawsand subordinate to the right of the Legislature to abolish the system or diminish its benefits. It further held that a contributionto 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 increasedpayments, the question to be resolved,iswhether the Board of Trustees, after exercising the discretionaryauthoritydelegatedby the Legislature by increasing the maximum pension to $150.00,hasthe power to subsequentlydecrease that amount.

The case of Board of Councilmenv. Brawner, 37 S.W. 950 (Ky.Ct. App. 1896] cited in our previous letter to you is also in ,pointon the current question. The Court inthat case held that a municipal legislaturemight abolish a board of public works which it had establishedunder discretionarypower conferred by a statute thatmade 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:

"Thepetition for rehearing in this case is based upon the theory.that there is something analogous to contract right in the tenure bywhich themembers of the board of publicworks of Frankforthold their offices, There is no such analogy. They do hold, as do persons holding offices createdby the legislature, subject to the power of the bodywhich created the office to abolish it. In each case the power is a delegatedpower. Themunicipal 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 empoweredby section 107 of the constitutionto create county and district offices for a term not exceedingfour years. But it will hardly be contended that, having created an officewith a term of four years, the general assemblymay not abolish it in two. Nor is there analogy between the case at bar and.the illustrationof 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. +
. .'IMrs. Marie Hudson, Page 4 (W&1066)

And in.the case ofWright v. City of Florence, 93 S.E.2d 215, (S.C.Sup. 1956) the Court upheld the validity of a city ordinanceabolishing a Civil Service Commission oreviouslv set up by ordinance under a statutepermittingthe 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 determineall applications for~retirement,claims for disability, either ,partial or total, and to designate the beneficiariesor persons entitled to participate therein or therefrom as hereinafter directed.

. ." (Emphasissupplied)

In the interpretationof 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 effectwithout attempting,to construe or interpret~thelaw. On the other hand when it is necessary to construe an act in order to determine its propermeaning, it is settled by a host of decisions that the court should first endeavor to ascertain the legis- ~lativeintent, from a,generalview 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 amendmentwill be construed and harmonizedwith the Act

. e 0 to which it is added, and of which it forms a part. The courtmay look ti the body of the amendatory act, its title and emergency clause, the existing facts or conditionsat the time of the amendment, and the body of the act amended."

The emergency clause of the amendment enablingthe Board of Trustees to increa;le;hemaximum pension to $150.00 reads in part as follows:

. 4. The fact that Boards of Trustees in many cities and towns under the Firemen?sRelief 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 publicwell and fulfilled all of the requirements to obtain such pension and such pension is inadequate for a livingwage, create an emergency . a .I1Acts 53rd,Leg.R.S. 19.53,ch. 82, p. 354. When read in conjunction with the generalprovisions of Section 3 of Article 6243eMrs. Marie Hudson, Page 5 (W-1066)

quoted above, it appears that the Legislature intended to vest the Board of Trusteeswith discretion to control,manage and disburse such fund, with respect to the alternate benefits, under such conditionsas current circumstancesmay justify, and that the Boardmay, by majority vote, decrease the alternate benefit pensions of those retired at the increasedrate.
SUMMARY
The Board of Firemen'sRelief and Retirement Fund Trustees of the City ofWichita Falls, Texas,may decrease the pensions of firemen who have been retired at increasedmonthly payments allowed and voted into effect under the alternate or selectivebenefit 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