December 21, 1965

Mrs. Marie Winters Commissioner Opinion No. C- 5'72 Firemen's Pension Commission Austin, Texas Re: Construction of Section. lOA( Article 6243(e), Vernon's Civil Statutes.
Dear Mrs. Winters:

In your letterdated September 7, 1965, requesting an opinion from this office,you submlt certain facts which we quote in part as follows:

'We are requestinga ruling from your office regarding Section lOA of the Firemen's Pension Law providingrefund of contributions.
n

. . . "Thisparticular fireman first started participating in the Firemen's Pension System February 1, 1949, he resignedMarch 1, 1949. He returned again February 16, 1951 and resfr+ned January 22, 1953. He returned October 17, 1954, Andyresigned October 16, 1957. No refund was made at the time of any of the above reslgnatlons because it was not permittedby law. "This firemanwas again employed by a Fire Department January 7, 1958, and started partlclpation in the Firemen's Pension System. He resigned July 22, 1965. His period of employment from January 7, 1958 to July 22, 1965 was continuous.

. . . With regard to these facts, you ask the following question: 11 .whetherornot this fireman (or any other fireman in a like case) is entitled to refund of contributionsmade prior to the amendment to the PensionLaw permitting refund."
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Mrs. Marie Winters, page 2 (C-572)

In your second letterdated October26, 1965, reauestlna an oolnlon from this office.vou ask a ouestlon which also requires-a construction of Section lOA of PensionLaw. Pursuant to your secondrequest,we sting the followingquestion in this opinion:

"Whetheror not refund to firemenwho terminate their service ismandatory ormust a majority of the participatingmembers vote to adopt refunding and the Board of Trustees approve the adoption of such a program." the Firemen's are incorporIn connection with this question,you state that:
"It is the opinion of this officeand of our local PensionBoards that this Section means refund Is an optionalprovisionand has to be voted Into effect in each Department before refund can be mad~e. 'Three of our largestdepartments;Houston, Amarillo and Corpus Christ1 are not refunding andmany of :he smallerpaid and part-paid departments.
We will answer your questions in the order in which they arepresented.

Section lOA of House Bill 35, Acts of the 58th Legislature, 1963,became effective on Au Bill 35 amended Section 10A of Article 62 3e,Vernon's Civil &"st 23, 1963. House Statutes. Section lOA( Article 6243e,Vernon's Civil Statutes, provides as follows:

"(f) In the event a fireman terminates, resigns, or leaves the active full-timeservice of the fire department for any reason other than those for which pension benefitswill accrue, and before he receives his twenty (20)year ension certificatenot having completedtwenty i) 20) years of active full-time service in the city's fire department,he shall receive an amountequal to the sum total of his monthly paymentsmade while a participatingmember in the Firemen'sRelief andRetirement Fund. However, no lump sumpayment shallbe made without prior approvalby majority vote of theBoard of Trustees. The

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Mrs. MarieWinters, page 

### 3 (C- 572)

adoption of a program to make lump sumpayments to terminated firemen in the amount of their totalmonthly contributions, subjectto approval by the Board of Trustees, shallbe effective upon a majority vote of the participatingmerffbers of the Firemen'sRelief and Retirement Fund. Attorney General's Opinion No. 

### C-153 (1963)holds as follows:

"Under the provisions of Section lOA ofHouse Bill 

### 35 /Section lOA( Article 6243e, Vernon's CrvI.1 Statutes7 a firemanwho was a participatingmember in-a Firemen's Relief and Retirement Fund on August 23, 1963, and thereafter terminates,resigns or leaves the active full-time service of a fire depsrtment for any reason other than those for which pension benefits will accrue, is entitled to reimbursement of allmonthly paymentsmade by him, notwithstandingthat payments have been made prior to August 

### 23, 1963." 'There is no authority for the retroactive reimbursement of monthly payments to firemen who were not on fuli-time servicewith a fire department having a Relief and Retirement Fund on August 23, 1963, even though a firemanmay have been sn active full-time fireman prior to August 23, 1963.” While the holding in Attorney Qeneral's Opinion No. 

### C-153 (1963)shouldbe clarified In light of the facts submitted, neverthelesswe think It Is applicable here. Therefore, It Is our opinion thatunder the facts submitteda fireman Is entitled to reimbursement of allmonthly paymentsmade by him, notwlthstanding that payments have been made prior to August 23, 1963. However, he Is not entitled to reimbursement of monthly payments made by him during those periods of employmentterminated by resignation prior to August 

### 23, 1963.

Passingnow to your second question, ou are advised that within the above limitations Section lOA(f 3 of Article 6243e ves;s those firemen comingwithin its terms with an absolute right to
. . .receivean amount equal to the sum total of his monthly paymentsmade while a par$lcipatlngmember in the Firemen's Relief and Retirement Fund. The existence of this right is not dependentupon any action of the Board of Trustees or the members of the Firemen'sRelief and Retirement Fund. The only

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Mrs. Marie Winters, page 4 (C-572)

optionwhich this Section authorizes iswith respect to the question of whether or not the refund is to be made in a lump sum and may be exercised in one of two ways. (1) A program may be adopted whereby all terminated firemen entitled to a refund are to receive such refund In a lump sum. Such a program may be put into effect by a majority vote of the participating members of the Firemen's Relief and Retirement Fund, if the Board of Trustees approves the action of themajority In adopting such program. (2) In the event no program of lump sum payment has been adopted then the option ofmaking a lump sumpayment in each Individual case would be left to the decision of a majority vote of the Board of Trustees,

We are not concerned with the wisdom or policy of the statute in this respect. The Legislaturehas expressed Itself In clear,andunambiguous language and we must apply and enforce its mandate as It reads without indulging In conjecture as to their Intent or resorting to the rules of statutory construction. 

### 53 Tex.Jur.2d 

### 174-175,Statutes, i3123 and cases there cited. SUMMARY Under the provisions of Section lOA of House Bill 

### 35 (Section lOA( Article6243e, Vernon's Civil Statutes), a firemanwho was a participatingmember In a Firemen'sRelief and Retirement Fund on August 23, 1963, and thereafter terminates, resigns or leaves the active -full-timeservice of a fire d~epartment for any reason other than those for which pension benefits will accrue, is entitled to reimbursement of allmonthly payments made by him, notwlthstanding that payments have been made during a period prlcr to August 23, 1963. However, he Is not entitled to reimbursement ofmonthly paymentsmade by him during thoseperiods of employment terminated by resignationprior to August 23, 1963. Within the fore olng limitations,Section lOA of Article 

### 62 se, fi Vernon's Civil Statutes, vests those firemen an absolute right toctmlngwithin its terms with .recelvean amount equal to the sum total of his monthly paymentsmade while a participatingmember In the Fireman'sRelief and Retirement Fund." The only optionwhich rests with the Board of Trustees or the participatingmembers of the Fund Is with respect to whetherrefund of contributions shall be made In a lump sum.

X767-Mrs. Marie Winters, page 

### 5 (C-572)

Very truly yours, WAGGONER CARR Attorney General

Ivan R. Williams, Jr. Assistant 1RWjr:ml:mkh
APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Malcolm Quick John Reeves PhillID Crawford W. 0. ihultz APPROVED FOR THE ATTORNEY GENERAL BY: T. B. Wright

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