Honorable Marie Winters Opinion No. M- 1165 

Firemen's Pension Commissioner 

503-F Sam Houston Building Re: Whether the Chief of the 

Austin, Texas 10701 Fire Department (under 

Article 1269m. V.C.S.)has 

sole authority to place a 

fireman on disability retirement or demand he return to work, or whether 

the local Pension Boards 

have the authority to determine (under Art. 6243e, 

V.C.S.) the degree and 

date of the fireman's disability? If Art. 1269m, 

Sec. 9, is controlling, 

what is ita constitutional 

Dear Mrs. Winters: effect upon Art. 6243e? 

Your original opinion request, together with your supplemental request, ask the following questions: 

Whether the Chief of the Fire Department under 

Article 1269m, Section 9, Vernon's Civil Statutes, 

has sole authority to put a fireman on disability 

retirement or demand he return to work, or whether 

the local Pension Boards have the authority to determine the degree and date of disabili.ty as provided in Article 6243e, Section 7, Vernon's Civil 

Statutes, known as the Firemen's Relief and Retirement Law. If Article 1269m, Sec. 9, is controlling, 

what is its constitutional effect upon Article 6243e? 

Article 1269m was originally enacted in 1947, Article 6243e 

was originally enacted in 1937. In 1957 the relevant sections of 

both Articles were amended at the Regular Session of the 55th 

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Honorable Marie Winters, page 2 (M-1165) 

Legislature. As amended, these Sections have remained extant 

to this time, The relevant portion of Article 1269m, Section 9, 

reads: 

'When a Fireman or Policeman is given a physical 

examination to determine if he is physically able to 

continue his duties, the physician appointed by the 

Commission to make such examination shall submit a 

complete physical report to the Chief of the Fire 

Department if the person so examined is a Fireman, 

and to the Chief of the Police Department if the 

person so examined is a Policeman. The Chief of each 

resoective Department shall be the sole judqe as to 

whether or not such Fireman orPoliceman is able to 

continue his duties," (Emphasis added.) 

The relevan:: portion of Article 6243e is that portion of 

Section 7 which reads: 

"Whenever a person serving as an active fireman duly enrolled in any regularly active fire department in any city or town intha State having a 

p.opulation of less ~than five hundred thousand 

ISOO,OOO) aczor,ding to the last preceding Federal 

Census, which city or town is now within, or may 

hereaftar come within the provisions of this Act, 

shall become physically or mentally disabled while 

in and/or in consequence of, the performance of his 

duty, said Board of Trustees shall upon his request, 

or without such request if it shall deem proper and 

for the good of the department, retire such person 

tal or partial dis- 

&ilitv as the case may warrant D . Se' (Emphasis added.) 

When there is no direct and irreconcilable conflict between 

two statutes they will be construed to give effect to both statutes. International Services v. Jackson, 335 S.W.2d 420 

(T.ex.Civ.App. 1960, errc'r ref. n.r,e.), There is also the presumption that where there is no expre 8s repeal in the enactment 

of a new law thai- ,the Legislatilre Intended 311 prior sta.tutes 

to remain in effect. Cunninqham v. Henry, 231 S.W.2d 1013 

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. 

Honorable Marie Winters, page 3 (M-1165) 

(Tex.Civ.App. 1950, error ref. n.r.e.). Texas does not favor 

repeal of laws by implication. Halsell V. Texas Water Comm., 

380 S.W.Zd 1 (Tex.Civ.App. 1964, error ref. n.r.e.): American 

Canal Co. v. Dow Chemical Co., 380 S.W.2d 662 (Tex.Civ.App. 

1964, error dism.). 

Ordinarily, where an irreconcilable conflict exists between two statutes and no provision for repeal is in either, 

the general rule is: In construing acts passed at the same 

session of the Legislature which do not have an express repeal and which have an irreconcilable conflict between them, 

the whole must be taken and construed as one act (i.e., the 

original act and its amendment). The one passing the last 

House of the Legislature later in time will control and be 

the effective act, regardless of when it was approved or 

signed or to become effective. Townsend v. Terrell, 118 Tex. 

463, 16 S.W.2d 1063 (1929); Wrisht v. Broeter, 145 Tex. 142, 

196 S.W.Zd 82 (1946); Ex parte Maria de Jesus de la 0, 227 

S.W.2d 212 (1950). 

The amendment to Article 1269m was contained in House Bill 

No. 79 (Acts 55th Leg., R.S., 1957, ch. 391, p. 1171). This 

Bill passed the House on March 5, 1957; the Senate amended the 

bill and passed it on May 16, 1957. Article 6243e was amended 

by House Bill No. 68 (Acts 55th Leg., R.S., 1957, ch. 275, 

p. 617). House Bill No. 68 passed the House on April 16, 1957, 

and passed the Senate on May 9, 1957. House Bill No. 79, amending Article 1269m passed both Houses later in time. However, 

the caption of the 1957 amendment to Article 1269m was faulty. 

It omitted any reference to Section 9, or the fact that this 

Section of the act was to be amended by adding the subject paragraph or that the subject matter was to be added in any manner. 

The body of the Act specifically includes Section 9 and the 

amendment thereto (Sec. 2 of the Act). 

Article III, Section 35 of the Texas Constitution reads in 

it3 relevant parts "No bill . . . shall contain more than one 

subject, which shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in 

the title, such act shall be void only as to so much thereof, 

as shall not be so expressed." 

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Honorable Marie Winters, page 4 (M-1165) 

In White v. State, 440 S.W.Zd 660 (Tex.Crim. 1969), the 

court said, II . . . A somewhat stricter rule of conformity of 

title to subject matter legislated on in body of the act is 

applied to amendments than to titles of original acts. . . ." 

(at p. 665). The court also stated: "It is well established 

that when the title of an original act embraces matters covered 

by an amendment, the title or caption of the amendment need not 

state the subject of the law amended or specify the nature of 

the proposed amendment, but new substantive matter in the amendment, not germane to the provision amended, is invalid as legislation on matters not expressed in the title of the amendatory 

act."' (at p. 665). Rutledge v. Atkinson, 101 S.W.2d 376 (Tex. 

Civ.App. 1937, no writ): Walker v. State, 116 S.W.2d 1076 (Tex. 

Crim. 1938, no writ); Ex parte Heartsill, 38 S.W.2d 803 (Tex. 

Crim. 1931). 

Since the caption to the 1957 act which amended Section 9 

of Artic!le 1269m is faulty, the amendment is invalid and unconstitutional. As a result, Article 6243e, giving the local pension boards the authority to determine the degree anddate of a 

fireman's disability, is the existing law to be followed. 

SUMMARY 

Since the caption or title of the act amending 

Section 9 of Article 1269m. V.C.S., is faulty, the 

amendment is invalid and unconstitutional. Article 

6243e, V.C.S., giving the local pension boards the 

authority to determine the degree and date of a fireman's disability, law to be followed. 

Prepared by Linda Neeley 

Assistant Attorney General 

APFROVEDs 

CPSNION COMMITTEE 

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Honorable Marie Winters, page 5 (M-1165) 

KerhS Taylor, Chairman 

W.E. Allen, Co-Chairman 

Kenneth Nordquist 

Jack Goodman 

Roland Allen 

Austin Bray 

SAMUEL D. McDANIEL 

Staff Legal Assistant 

ALFREDWALKER 

Executive Assistant 

NOLAWHITB 

First Assistant 

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