E QIRNE~ GENE 

F EXAS 

Mrs. Marie Winters 

Commissioner 

Fireman's Pension Commission 

Sam Houston State Office Building 

Austin, Texas 

Dear 

upon 

Opinion No. c-611 

Re: In a town with firemen, widows 

and children drawing benefits, 

where there is not sufficient 

money on hand to pay full 

pensions should a paid fireman 

who terminates his service be 

refunded his contributions from 

the State Emergency Reserve 

Fund before the pensioners are 

Mrs. Winters: paid and related question. 

Your recent letter to this office requests our opinion 

the following questions: 

"1 . In a town with firemen, widows and children 

drawing benefits where there is not sufficient 

money on hand to pay, full pension, should a paid 

fireman who terminates his service be refunded 

his contributions from the State Emergency Reserve 

Fund before the pensioners are paid? 

"2 . Many of the pensioners are only drawing 

30% to 50% of their pension. Should the refund 

be made on a pro rated basis? If so, what manner 

of proration would be legal, since any refund of 

contributions is going to reduce the pensions 

even more." 

The conditions and circumstances whereby allocations 

may be made from the emergency reserve fund are set forth in 

Section 20 of Article 6243e of Vernon's Civil Statutes. The 

relevant portions of said Section read as follows: 

-2962- 
Mrs. Marie Winters, page 2 (c-611) 

"Whenever any Board of Trustees shall find 

the fund as herein provided and within their 

control insufficient to meet the demands against 

such funds, such Board of Trustees may make 

written application to the Firemen's Pension 

Commissioner for additional temporary apportionment from the emergency reserve of such Fund 

such application by the sworn statement of at 

least three (3) members of such Board of Trustees 

showing that the department applying for such 

temporary apportionment has assessed its members 

the maximum assessment provided hereunder,and 

showing further the necessity and reasons for 

such additional temporary apportionment and 

if approved by the Firemen's Pension Commissioner, 

he shall certify his approval to the State 

Treasurer . . . Upon such certificate of approval 

of such application by the Firemen's Pension 

Commissioner the State Treasurer shall pay 

to such applicant Board the sum stated in such 

certificate from the emergency reserve of said 

Firemen's Relief and Retirement Fund and in 

addition to the amount to be paid such Board 

under the regular apportionment as herein 

provided due such Board." 

We find no other provision relating to disbursements 

from the emergency reserve fund. This provision does not 

authorize any disbursement from such fund to be made to any 

individual who Is entitled to benefits or refund of contributions 

under the Firemen's Pension Act. Such allocations as are 

authorized are to be made to the board of trustees~of the local 

fund Therefore in answer to your first question you are 

advised that a tirminated fireman is not entitled to be refunded 

his contributions from the emergency reserve fund before 

pensioners are paid. 

The provisions of the Firemen's Pension Act do not 

provide for any priority of payment as between benefits payable 

to retired firemen, widows and children, and the refund of 

contributions to terminated firemen. In the absence of some 

Legislative expression that such individuals are to be treated 

differently insofar as priority of payment is concerned we are 

not authorized to engraft upon the applicable statutes a 

provision placing one upon a higher footing than another. 

Section 2.5 of Article 6243e clearly expresses the 

intention of the Legislature that a system of priority not be 

-2963- 
Mrs. Marie Winters, page 3 (C-611,) 

resorted to in disbursement of funds under this Act. Such 

Section provides as follows: 

"If for any reason the Fund or Funds hereby 

made available for any purpose covered by this 

Act shall be insufficient to pay in full any 

allowance or disability benefits then all granted 

allowances, or disability benefits shall be 

proratably reduced for such time as such 

deficiency exists," 

In our opinion, this Section requires a prorata 

reduction in all payments authorized by the Act when the 

available funds are insufficient to meet the immediate obligations 

oarrable. The term uro rata means aCcOrdinQ to orooortion. 

Chenoweth v. Nordan'& Morris, 171 S.W.2d 386 (T~x.CIV.AQQ~ 1943, 

error refused w.o.m.); Webster's Third New International Dictionary. 

Therefore in answer to your second question you are advised 

that all &ma payable from a given fund should be proratably 

reduced when the fund is insufficient to meet the full obligations. 

This would necessarily include refunds of contributions to a 

terminated fireman. The determination of the amounts payable 

from any particular fund is a mathematical calculation dependent 

upon the facts in each instance and is a matter for administrative 

determination. 

SUMMARY 

The refund of contributions to a fireman who 

terminates his service prior to retirement is not 

payable from the emergency reserve fund before 

pensioners are paid; where a particular fund is 

insufficient to meet all disbursements payable 

from it under the Firemen's Pension Act, such 

disbursements including refunds to terminated 

firemen, are to be proratably reduced. 

Very truly yours, 

WAGGONER CARR 

Attorney General 

BY 

-2964- 
- . 

Mrs. Marie Winters, page 4 (c-611.) 

WOS:ml 

APPROVED: 

OPINION COMMITTEE 

W: V. Geppert,~ Chairman 

Malcolm Quick 

Gordon Houser 

Linward Shivers 

Mario Obledo 

APPROVEDFOR THE ATTORNEY GENERAL 

By: T. B. Wright 

-2965-