### THE 

## ATTORNEY GENERAL OFTEXAS

**CEAWFORD c.**  **MARTIN AUSTIN.**  **TEXAS 78711** 
***T-rORN&Y CaENERAL** 

February 15, 1967

Mrs. Marie Hudson Winters' Firemen's Pension Commissioner OpinionNo. M-24 1010 Sam Houston State Office Bldg. Re: - ~Austln,

Texas 78701

pear Mrs. Winters:

You have requested the opinion of Whether a fireman is entitled to participate In the Firemen'sRelief and Retirement Fund under the stated facts. this office regardlng the above question,and in this connectionyou have submitted the following facts:

'Houstonhas a firemanwho resigned from the Fire BepartmentAugusti 19, 1965. He reentered the Houston Fire DepartmentOctober 12, 

### 1966,an absence of more than one year. This fireman first entered the Houston Fire DepartmentNovember 

### 8, 1955,. At that time he was 31 years of age.'
In determiningthe pro Per must first look to Section lOE(d answer to your question,we

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

"Each person who shall hereafterbecome a fireman in any such city which has a Flremen's Relief and RetirementFund in which he Is eligible for membership, shall become a member of such Fund as a conditionof his appointment, and shall by acceptanceof such position agree to make and shall make contributions required under this Act of members of such Fund, and shall participatein the benefits of membership in such Fund as provided In this Act; %Fi= however, that no person shall be eligl e o membership in any such Fund who is more than thirty (30) years of age at the time he first enters service as a fireman; and provided fUrtier, that any such person who enters service

- 103 -Mrs. Marie Hudson Winters, page 2 (~-24)

as a firemanmay be denied or excused from membership in the Fund if the Board of Trustees of the Fund d.etermlnes that such person is not of sound health.

. . ." (Emphasisadded.)

1965. The above'Sectlon was enacted in 1963, and amended in At the time of the subject fireman's initial entry Into service, there was no age limitationfor participationin the Firemen'sRelief and RetirementFund. In 1963 the fireman In questionwas a fu1l.y participating

member of the Firemen's Relief and RetirementFund. The statute,by Its terms, did not, and does not, apply retroactively, but is directed at persons who first entered service after the effectivedate of the act. Wendte frame fact situation submittedby you that the fireman in questionhas had an Interruptionin his service of somethingover one year. Thus, his re-entry into the service doesnot constitutea first entry into service. The words of the statute are clear, and there Is nothing to Indicate a contrary construction. You are therefore advised that it is the opinion of thls'officethat the said fireman la fully entitled to participatein the Firemen'sRelief and RetirementFund as a regularmember of his city's Fire Department.
SUMMARY Under the submittedfacts, Article 6243e, Section lOE(d),V.C.S. does not bar the fireman In question from participationin the Firemen's Relief and RetirementFund of his city's Fire Department. truly yours,

y General of Texas Preparedby Malcolm L. &ulck AssistantAttorney General
APPROVED: OPINION COMMITTEE Hawthorne Phillips,Chairman W. V. Ceppert, Co-Chairman John Reeves Z. T. Fortescue Alan Minter Dyer Moore STAFF LECAL ASSISTANT A. J. Carubbi,Jr. - 104-