Honorable Hal H. Hood Opinion No. H-1048

Firemen's Pension Commissioner Sam Houston Building Re: Authority of Firemen's Austin, Texas 78701 Pension Commissioner to permit out of time appeals.

DearMr. Hood:

You have requested our opinion regarding the authority of the Firemen's Pension Commissioner togrant out-of-time appeals. You explain that on July 29, 1976, the Board of Trustees of theFiremen's Relief and Retirement Fund of the City of Odessa denied the request of a retired fireman for an increase inhismonthly benefits. On December 31, 1976, you granted the fireman's motion for an out-of-time appeal from theBoard's decision. You now askwhether itwas within your authority todo so. Section 18of article 6243e,V.T.C.S., provides inpertinent part:
Any person possessing the qualifications

herein required for retirement for length of service or disability orhaving a claim for temporary disability who deems himself aggrieved by thedecision or order of any Board of Trustees, whether because of rejection or the amount allowed, may appeal from the decision or order of such Board of Trustees to theFiremen's Pension Commissioner by giving written notice of intention to appeal, which said notice shall contain a statement ofhis intention to appeal, together with abrief statement of thegrounds and reasons why he feels aggrieved andwhich said notice aforesaid shall be served personally upon the chairman or secretary-treasurer of said Board of Trustees within twenty (20)days after thedate of such order or decision. After

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service of such notice, the party appealing shall filewith the Firemen's Pension Commissioner a copy of such notice of intention to appeal, together with the affidavit of the partymaking service thereof showing how,when, and uponwhom said notice was served.

. . . A final decision or order by such Firemen's Pension Commissioner may be appealed and an appeal therefrom may be taken to theproper Court of Travis County, Texas, having jurisdiction of the subject matter, upon the serving within twenty (20)days after date of such decision or order of anotice in writing of such intention to soappeal upon the adverse party.

InCarson v. Hudson, 398 S.W.2d 321 (Tex.Civ. App. --Austin 1966, nowrit), the court held that compliance with the 20day requirement of section 18authorizing appeals from a final decision of the Firemen's Pension Commissioner

ismandatory inorder togive the District Court jurisdiction over the case.
Id. at 323. The language of section 18with respect to apGls from orders of theBoard of Trustees to the Commissioner is substantially the same,as the language regarding the later stage of the appeal process. Since the court held that compliance with the 20day provision of the latter wasmandatory, we believe the courtwould apply the same principle to the initial appellate procedure. In our opinion, the Firemen's Pension Commissioner has no jurisdiction tohear an appeal from
an order of aBoard of Trustees of aFiremen's Relief and Retirement Fund unless the aggrieved fireman has filed his notice of appeal with theBoard of Trustees within 20days after thedate of the Board's order, absent a judicial finding that the late filing was "due to fraud andmisrepresentations." Board of Firemen's Relief and Retirement Fund Trustees Of Harris County v. Stevens, 372 S.W.2d 572, 574 (Tex.Civ. App. --Houston 1963, no writ). Inview of our answer to this question, we need not address your two remaining **qUeStiOnS.**
SUMMARY
The Firemen's Pension Commissioner has no jurisdiction tohear an appeal from anorder of aBoard of Trustees of a Firemen's Relief

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and Retirement Fund unless the aggrieved fireman has filed his notice of appeal with the Board of Trustees within 20days after the date of theBoard's order, absent a judicial finding that the late filing was due to fraud ormisrepresentation.
Very truly yours,

APPROVED:

C. ROBERT HEATH, Chairman Opinion Committee jst

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