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 drawingbenefits, where there is not sufficient money on hand to pay full pensions should a paid fireman who terminates his servicebe refunded his contributionsfrom the State Emergency Reserve Fund before the pensionersare 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 firemanwho terminateshis servicebe refunded his contributionsfrom the State EmergencyReserve Fund before the pensionersare paid? "2

. Many of the pensionersare only drawing 30% to 50% of their pension. Should the refund be made on a pro rated basis? If so, what manner of prorationwould be legal, since any refund of contributionsis going to reduce the pensions evenmore." The conditions and circumstanceswhereby allocations may bemade from the emergency reserve fund are set forth in Section 20 of Article 6243e of Vernon's Civil Statutes. The relevant portionsof said Section read as follows:

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"Wheneverany Board of Trustees shall find the fund as herein providedand within their control insufficientto meet the demands against such funds, suchBoard of Trusteesmay 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 departmentapplying for such temporaryapportionmenthas assessed its members themaximum assessment providedhereunder,and showing further the necessity and reasons for such additional temporary apportionmentand if approved by the Firemen's Pension Commissioner, he shall certify his approval to the State Treasurer
. . .Upon such certificateof approval of such applicationby the Firemen's Pension Commissioner the State Treasurer shall pay to such applicantBoard 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 apportionmentas herein provided due suchBoard."
We find no other provisionrelating to disbursements from the emergencyreserve fund. This provision does not authorize any disbursement from such fund to be made to any individualwho Is entitled to benefits or refund of contributions under the Firemen's PensionAct. 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 pensionersare paid.

The provisionsof the Firemen's PensionAct do not provide for any priorityof payment as between benefits payable to retired firemen, widows and children,and the refund of contributionsto terminated firemen. In the absence of some Legislative expression that such individualsare to be treated differently insofar as priority of payment is concernedwe are not authorized to engraftupon the applicable statutesa provisionplacing one upon a higher footing than another.

Section 2.5of Article 6243e clearly expresses the intention of the Legislature that a system of prioritynot be -2963-Mrs. Marie Winters, page 

### 3 (C-611,)

resorted to in disbursement of fundsunder this Act. Such Section provides as follows:

"If for any reason the Fund or Funds hereby made available for any purpose coveredby this Act shall be insufficient to pay in full any allowance or disability benefits then all granted allowances, or disabilitybenefits shall be proratably reduced for such time as such deficiency exists,"
In our opinion, this Section requires a prorata reduction in all paymentsauthorizedby the Act when the available funds are insufficientto meet the immediateobligations oarrable.The term uro ratameans aCcOrdinQ to orooortion. Chenowethv. Nordan'&Morris, 

### 171 S.W.2d 

### 386 (T~x.CIV.AQQ~1943, error refused w.o.m.); Webster's Third New InternationalDictionary. 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 determinationof the amounts payable from any particular fund is a mathematical calculationdependent upon the facts in each instance and is a matter for administrative determination.

SUMMARY

The refund of contributionsto a fireman who terminateshis 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 PensionAct, such disbursements including refunds to terminated firemen, are to be proratably reduced. Very trulyyours, WAGGONER CARR Attorney General

BY

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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

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