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 towork, or whether the local Pension Boards have the authority to determine (underArt. 6243e, V.C.S.) the degree and date of the fireman's disability? IfArt. 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 towork, orwhether the local Pension Boards have the authority to determine the degree and date of disabili.tyas provided inArticle 6243e, Section 7,Vernon's Civil Statutes, known as the Firemen's Relief andRetirement Law. IfArticle 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Article 1269m was originally enacted in 1947, Article 6243e
was originally enacted in 1937.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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Legislature. As amended, these Sections have remained extant to this time, The relevant portion ofArticle 1269m, Section 9, reads:

'When aFireman or Policeman isgiven aphysical examination to determine ifhe isphysically able to continue his duties, thephysician appointed by the Commission tomake such examination shall submit a complete physical report to the Chief of the Fire Department if the person so examined is aFireman, and to the Chief of the Police Department if the person so examined is aPoliceman. 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 ofArticle 6243e is that portion of Section 7which reads:

"Whenever aperson serving as an active fireman duly enrolled in any regularly active fire department in any city or town intha State having a p.opulationof less ~thanfive hundred thousand ISOO,OOO)aczor,dingto the last preceding Federal Census, which city or town is nowwithin, ormay hereaftar comewithin the provisions of this Act, shall become physically ormentally disabled while in and/or in consequence of, the performance ofhis duty, said Board of Trustees shall upon his request, orwithout 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 maywarrant D

. Se'(Emphasis added.)

When there isno direct and irreconcilable conflictbetween two statutes they will be construed to give effect toboth statutes. International Services v. Jackson, 335 S.W.2d 420 (T.ex.Civ.App.1960, errc'rref. n.r,e.), There is also the presumption thatwhere there isno expre8s repeal in the enactment of a new law thai-,theLegislatilreIntended 311 prior sta.tutes to remain ineffect. 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 lawsby implication. Halsell V. TexasWater 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 theLegislature which do not have an express repeal andwhich have an irreconcilable conflictbetween them, the whole must be taken and construed as oneact (i.e., the original act and its amendment). The one passing the last House of theLegislature later in timewill control and be the effective act, regardless ofwhen itwas approved or signed or tobecome 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 deJesus de la 0, 227 S.W.2d 212 (1950).

The amendment toArticle 1269m was contained in House Bill No. 79 (Acts55th Leg., R.S., 1957, ch. 391,p. 1171). This Bill passed the House onMarch 5, 1957; the Senate amended the bill andpassed it onMay 16, 1957. Article 6243ewas amended by House BillNo. 68 (Acts 55th Leg., R.S., 1957, ch. 275, p. 617). House Bill No. 68 passed the House onApril 16, 1957, and passed the Senate onMay 9, 1957. House Bill No. 79, amendingArticle 1269m passed both Houses later intime. However, the caption of the 1957 amendment to Article 1269mwas faulty. It omitted any reference to Section 9, or the fact that this Section of the actwas tobe amended by adding the subject paragraph or that the subject matter was tobe added in anymanner. The body of the Act specifically includes Section 9 and the amendment thereto (Sec. 2of the Act).
Article III, Section 35 of the Texas Constitution reads in
it3 relevant parts "Nobill

. . .shall containmore than one subject, which shall be expressed in its title. But if any subject shallbe embraced in an act which shallnot be expressed in the title, such act shall be void only asto somuch thereof,
as shall notbe so expressed."

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InWhite 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 inbody of the act is applied to amendments than to titles of original acts.

. . ." (atp. 665). The court also stated: "It iswell 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 theprovision amended, is invalid as legislation onmatters not expressed in the title of the amendatory act."'(atp. 665). Rutledge v. Atkinson, 101 S.W.2d 376 (Tex. Civ.App. 1937, nowrit): Walker v. State, 116 S.W.2d 1076 (Tex. Crim. 1938, nowrit); Ex parte Heartsill, 38 S.W.2d 803 (Tex. Crim. 1931).
Since the caption to the 1957 act which amended Section 9 of Artic!le1269m 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 tobe followed.

SUMMARY
Since the caption or title of the act amending Section 9ofArticle 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 tobe followed.

Prepared by Linda Neeley Assistant Attorney General

APFROVEDs CPSNION COMMITTEE -5683-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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