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 letter dated September 7, 1965, requesting 

an opinion from this office, you submlt certain facts which 

we quote in part as follows: 

'We are requesting a ruling from your 

office regarding Section lOA of the Firemen's Pension Law providing refund of contributions. 

n 

. . . 

"This particular fireman first started 

participating in the Firemen's Pension System 

February 1, 1949, he resigned March 1, 1949. 

He returned again February 16, 1951 and resfr+ned 

January 22, 1953. He returned October 17, 1954, 

Andy resigned October 16, 1957. No refund was 

made at the time of any of the above reslgnatlons 

because it was not permitted by law. 

"This fireman was 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 .whether or not this fireman (or 

any other fireman in a like case) is entitled 

to refund of contributions made prior to the 

amendment to the Pension Law permitting refund." 

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I) . 

Mrs. Marie Winters, page 2 (C-572) 

In your second letter dated October 26, 1965, reauestlna an oolnlon from this office. vou ask a ouestlon which 

also requires-a construction of Section lOA of 

Pension Law. Pursuant to your second request, we 

sting the following question in this opinion: 

"Whether or not refund to firemen who 

terminate their service is mandatory or must 

a majority of the participating members 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 office and of 

our local Pension Boards that this Section 

means refund Is an optional provision and has 

to be voted Into effect in each Department 

before refund can be mad~e. 

'Three of our largest departments; Houston, 

Amarillo and Corpus Christ1 are not refunding 

and many of :he smaller paid and part-paid 

departments. 

We will answer your questions in the order in which 

they are presented. 

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-time service 

of the fire department for any reason other than 

those for which pension benefits will accrue, and 

before he receives his twenty (20) year ension 

certificate not having completed twenty i) 20) years 

of active full-time service in the city's fire 

department, he shall receive an amount equal to 

the sum total of his monthly payments made while 

a participating member in the Firemen's Relief 

and Retirement Fund. However, no lump sum payment shall be made without prior approval by 

majority vote of the Board of Trustees. The 

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. J 

Mrs. Marie Winters, page 3 (C- 572) 

adoption of a program to make lump sum payments 

to terminated firemen in the amount of their 

total monthly contributions, subject to approval 

by the Board of Trustees, shall be effective 

upon a majority vote of the participating merffbers 

of the Firemen's Relief and Retirement Fund. 

Attorney General's Opinion No. C-153 (1963) holds 

as follows: 

"Under the provisions of Section lOA 

of House Bill 35 /Section lOA( Article 

6243e, Vernon's CrvI.1 Statutes7 a fireman who 

was a participating member 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 all monthly payments made by 

him, notwithstanding that 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 service with a fire department having a Relief and Retirement Fund on 

August 23, 1963, even though a fireman may have 

been sn active full-time fireman prior to August 

23, 1963.” 

While the holding in Attorney Qeneral's Opinion No. 

C-153 (1963) should be clarified In light of the facts submitted, 

nevertheless we think It Is applicable here. Therefore, It Is 

our opinion that under the facts submitted a fireman Is entitled 

to reimbursement of all monthly payments made 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 employment terminated by 

resignation prior to August 23, 1963. 

Passing now to your second question, ou are advised 

that within the above limitations Section lOA(f 3 of Article 

6243e ves;s those firemen coming within its terms with an absolute 

right to . . .receive an amount equal to the sum total of his 

monthly payments made while a par$lcipatlng member in the Firemen's Relief and Retirement Fund. The existence of this right 

is not dependent upon any action of the Board of Trustees or the 

members of the Firemen's Relief and Retirement Fund. The only 

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I _,. 

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

option which this Section authorizes is with 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 the majority In adopting such 

program. (2) In the event no program of lump sum payment has 

been adopted then the option of making a lump sum payment 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 Legislature has expressed Itself 

In clear,and unambiguous 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, i3 123 and cases there cited. 

SUMMARY 

Under the provisions of Section lOA of 

House Bill 35 (Section lOA( Article 6243e, 

Vernon's Civil Statutes), a fireman who was a 

participating member 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 d~epartment for any 

reason other than those for which pension benefits will accrue, is entitled to reimbursement 

of all monthly 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 of monthly 

payments made by him during those periods of 

employment terminated by resignation prior to 

August 23, 1963. 

Within the fore olng limitations, Section 

lOA of Article 62 fi se, Vernon's Civil Statutes, 

vests those firemen 

an absolute right to 

ctmlng within its terms with 

.recelve an amount equal 

to the sum total of his monthly payments made while 

a participating member In the Fireman's Relief and 

Retirement Fund." The only option which rests with 

the Board of Trustees or the participating members 

of the Fund Is with respect to whether refund 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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