December 28, 1953

Hon. G. F. Williams OpinionNO. S-118 Firemen's Pension Commissioner Austin. ,Texas Re: Eligibility of a retiredVolunteer Fireman to again participate in the Firemen's Pension Systemby securing employment as Dear Mr. Williams: a paid fireman.

Your request for an opinion of this office is as follows:
"We desire the opinion of your office regarding a man who has been drawing a pension as a volunteer fireman being hired as a paid man and resumingparticipation in the Pension System on a paid basis.
"One of the smaller towns participating in the Firemen's Pension Systemhas a man who was retired after having servedmore than twentyyears and reaching the age of 55. He was paid the maximum volunteer'spension of $25.00 a month for almost two years. The City has now hired this man as a paid fireman. His pension has, of course,been stopped and he has started contributing into the Pension Fund on a percentage of his salary.
"It is the opinion of this Department that once a man has reached retirement age and has been retired on pension,he cannot again start participating in the Pension Fund. It is our opinion that shouldhe be employed again by the Fire Department,his pension should just be discontinuedwhile he is drawing a salary. It seems to be the opinion of the local Pension Board that thisman can pay into the Fund now on his salary and after a five-yearperiod be retired on the basis of a paid man, his pension being figured on one half of his monthly salary.‘:.

Hon. G. F. Williams, page 2 (S-118)

for the five-yearperiod justprior to his second retirement.
"Your opinion is necessary due to the conflictingview of this Department and the local Pension Board. Please advise If the man can start contributingagain after once having been on pension."
In effectyou have asked for our opinion on the eligibility of a retiredvolunteer fireman to return and again participate in the Firemen's Pension Systemby receiving employment as a paid fireman and thus, after five additional years of service as such, being able to again retire but this time on the basis of a fully paid fireman.

We are of the belief that the intent and purpose of the Legislature in creating the Firemen's Relief and Pension Fund (Article6243e, Vernon's Civil Statutes)was two-fold: First, to reward and compensatethe firemen throughout the Statewho have performed dangerous and extrahazardous duties protecting others' lives andproperty throughmany years of service; and second, to inducemen to enter active Service as firemen and to retain their service as such. We also have the further considerationthat the Act provideswhat is generally known and consideredas a "Firemen'sPension": our oension laws are generally liberally construed in favor of'thep&loner. Board of Fi men R ie & Retirement Fund Tru tees o v. Marks, 2;; S ~S2de~20~5 ( f Houstop Tex.Civ.,App.

1951,Sreversed on '~ ther grounds 2;2'S.W.2d 181, 27 A.L.R.2d 965); 40 Am. Jur.963, Fensions, Sec. 4.

With these principles inmind,we will now look to thewording of the applicableportions of the Act (Article 6243e, as amendedby Chapter 82, Acts of the 53rdLegislature, 1953, page 352)which read as follows:

"Section6. Anypersonwho has been duly appointed and enrolled andwho has attained t& age of fiftv-five (5'5) vears. and ho has ser ed activelyfor a aeriod of twentv (2:)year& inv one ormore regularly organized fire departments in any city or town in this State nowwithin or that may comewithin the provisions of this Act, in any rank,whether aswholly paid, part paid or volunteer fireman, shall be entitled to b rqtired from such service or department and &&,& be entitled to be oaj& from the Firemen's ReliefHon. G. F. Williams, page 3

and RetirementFund of ..- (S-118)

that city or town, a monthly pension equal to one half of his averagemonthly salary not to exceed a maxlmum of One Hundred Dollars ($100)per month, except as hereinafterprovided; such average monthly salarv to be based on the monthly averaae of his salary for the five (5') year period D e edinn the dat f u h retirement provided'f&ther, that 1: &ssaterage monthlb salary is Fifty Dollars ($50) or less per " month, or if~avoluntee,r firemanwith no salary, he shall be entitledto amonthly pension or retirement allowance of Twenty-fiveDollars (?P5). Notwithstandingany other provision of this Act, it is hereby speciallyprovided that any eligible and qualified firemanwho shall have completedtwenty (20)years of ser ice before reaching the age of fifty-five ( F5) years may apply to the Board of Trustees for, and it shallbe the Board's duty to issue, a certificate showing the completion of such service and showing and certifyingthat such fireman,when reaching the age of fifty-five (55) years,will be entitled to the retirement and other applicablebenefits of this Act; provided further, thatwhen anv fireman shall have been issued such certificatehe hall when reachins retirement ase. be entifled all the aoolicablebenefits of the Act. eve: thouph he shall not have been engaged in active service as a fireman after the I uan Q f u h ertificate Provided furtheis thzt Tn kiercto particiiate in the benefit: authorized under this Act all persons shall continue to pay into the Firemen'sRelief and Retirement Fund the amountsprovided for all participants thereunderup to the time of their retirement. Provided further, that any regularly organized 'fullpaid' fire department in any city or town in this State now within or that may comewithin the provisions of this ,Act, may, upon a majority vote of said Board of Trustees, increasethe maximum pension to One Hundred Fifty Dollars ($150)permonth." (Emphasis supplied) Section 7 of Article 6243e, supra, after providing for retirement in cases of disability sufferedwhile on active duty, continues as follows:Hon. G. F. Williams, page4 (s-118)

,"Section7. e D

.provided further, that if and when such disability shall cease, such retirement or disability allowance shall be EX&ed same discontinuedand such person shallbe to active service at not less thanthe salaryhe received at the time of his retirement for disability." (Emphasissupplied.)
"Sec. 14.Any fireman possessingthe qualifications,andbeine: eliaible for voluntarv retirement,butwho shall elect to continue in the service of such fire department,may aoply to% Board of Trustees for a certificate,and if found to possess su,ch

qualificationsand be eligible for retirement as herein provided, the Board of Trustees shall issue to such fireman a certificate showing'hlmto be entitled to retlremerkor dlsablllty allowance.

. D .' (Emphasissupplied)
"Sec. I6.'Anyretired firemanmay be recalled to duty In case of great conflagrationand shall perform such duty as the chief of the fire departmentmay direct,but shallhave no claim' against such city or town for payment for such duty so performed."
In studying the pertinent sectionsabove,we find that the Act nowhere disqualifiesnor prohibitsa"person from returning Into servl,ce as a fireman after he has elected to retire. The act Is specific in providing that the retiring paid fireman la entitled to receive t,he pay or pension based on his pay during the last five (5)years of service, If the vol,unteer

firemanhas retired, butreturns and serves another five (5)years In a'full pay'capacityand contributes into the Fund during all of that, time, he Is entitled to his pension' based on the pay received by him duringhis last five (5) years of service.

It is our opinion, under the facts as given us In your letter, that a volunteer flremanwho elected to retire, and drew a pension as such,may return, contribute to and benefit from the Fund by reason of again accepting employment as a paid fireman.Hon. G. F. Williams, page 5 (s-118)

SUMMARY

A volunteer fireman who has elected to retire and who has drawn a pension as a retired fireman, is eligible to return, contribute to and participate in the Firemen's Pension System by securing employment as a paid fireman; on subsequent retirement, his pension is based on the pay received by him during his last five (5)years of service. Sec. 6, Art. 6243e, V.C.S.

Yours very truly,
APPROVED: Rudy G. Rice State Affairs Division JOHN BEN SREPPERD Attorney General

John Atchison Reviewer
Robert S. Tro'rti First Assistant
VFT/wb