The Attorney General of Texas
June 29, 1979
lionorable Jarvb Miller, President Opinion No. NV+29
The Texas A h MUniversitv Svatem
College Station, Texas 770-h - Re: Rfghts of the State Employee
on Active Duty for .Tmining rtth
the Nntiaml Qumd.
-.SlJll8XW
a.Tx.maw
42444
Dear Preeident Millem
You have lvxplded our apbllon al two questionr regard@ the fighta
of~~~em~~~to~~dutpfor~~bythaTanrkmy
Nattonrl Cl* ‘T?m individual about whom ycu Inquire has rekmtly
completed If to 24 reek8 of bwic train& 8nd you first h6k Etz,t;
shouubeco~~foranyor~ofthi8peri~of~
of artlck 5765, Y.T.C.S.,provIdea
Sec. 1. Q Au and employeea ef the 8tnte
0rnm
of TOXIW
and of any county or political abdiv&ioa
thereon tocluding munlcipelit~ who dmll be mem
ban of the st6te Mllita~ Porce4 or membem of any
of the ReMwe comts of the Arllted Force4
shall be entitled to leave of hence imm their
respective fhtles witbout bea of time or efficiency
* Tmm.suaC
ml. TX. mol mtiegavacationtimeor6alaryondldaysduring
ml WhiChthtgShflllba~inClUthO?Mt?dningOt
duty ordered cr authorked by pw @uthority, for
nottoexceedfifteeno)daysinanyonee4den&c
mnuasui*4m
-. TX.mzw YW*
Ml*1
h Attcrney Qcncml Qphth c-m (196Sh this office ccr&mWi the
&vmdmmx of seetlon 7, artlcle 5769b4, V.T.C.S. (rqmeled), which provided
. for oompaMutian
on all days cm jvhich btntc employeesI 8hall be
ordered to ch~tywith troops cr field exercises, or fur
Nwombk Jew& Miller - Pa@ Two :.MbZ-22)
hwtruction, for not to exceed dfteen 05) daya in any ale CdeaQr
yeclr.
This apinion held that the ‘&lay provisiar was not a@kable to we&end duty or
kstrwtiw but ~a.9 limited to Summer camp” trait&q. Mkequently, however, the
legislature amended the statute to its present version. Acts lS65,SSth Leg., eh. 696, at
‘1601. As a result, the Attomey General construed swtion T to permit compensation
witbut loss of pay on any ls wak daya per yaw, whether a wt taken consecutively.
7 .
Attorney General Opinion cd79 (1966
~Inouropinton,tNsview~apOlleableto~pariadrinwMdrMindividualh~~
&I %uthaiwd tmining la duty.” A state employcla b wtitkd to be wmpbasated for ah
such leave, not to exceed 15 working days per year, whsther his absence is attributabk to
basic training, summer camR or any other duly ordered wrvice. Although the
aDpmpriatiam act, Acts 1977, 65th ‘Leg., ch. 672, at 2147, S?(f& authoriaes *a leave of
absence with full payv la state employees calkd to active duty with the National Guard,
we believe It b required to be construed in harmcny with artkk 5765, which limits
comPensatkn to 15 worhin6 days per year.
You else inquire about a state agency% obli6atkn to restae an individual to his
farmer Position after wmpktim of mititary servke. Section T(b)of artick 5765 states:
(b) Members of the State Mlitary For&, a members of any of
thaReserveComponentsoftheArmedForce8whoarehthe
e~~yoftheStateofTeuqwhoaracrderedta&tpbyproper
authority sha& when re*ved fram duty, be restored to the
positim held by them when ordered to duty.
Swtion 1 of artkk 6252-44 V.T.C.S.,however, ~rovh+
Any employw of the State of Texas or any politkal subdivision,
state institution,~ county or niunicipality thereoc other than a
temporary employw, w eketed 0ffkkL a one servbq under an
appointment whkh requires confirmation by the Senate, who kaves
hispositionforthsplrposeoislltcrinqtheArmsdForarofult
United States, or enters State servke as a member of the Texas
National Quad a Texas State Guard a as a member of any of the
resave wmpownta of the Armed Forcer of the United States
shall, if dischhged, separated a released from such active military
savlw under howmbk conditions withia five years from the date
of enlistment a csll to active serviea, bs restored tqemployment
in the same depurlment, offlw, wmmimkn or board of the State
of Texas a any Political ntbdiviskn, state institution, county or
mwkipality therwf, to the same Position held at the time of
kductio;c, enlistment a order to active Federal or State military
&ty or service, a to a Position of 3ike seniaity, status, and Pay if
p. 98
’ --_
: .
i
Hwaabls Jawb MIlla - Pa#cThree (Ia+291
still p@skaUy snd mentally qualified to perform the &tks of ruch
positiab
Artkk 6252da b not applkabk to temporary employee% ekcted offkiak, or
appointaer who require Swata wnfirmation. k to other employees of the state snd its
politkel &&isiaw, however, a conflict between the two statutes aids, since artkk
5765 raquima that ths employea be minstated k his preMyikld position, and artkle
6252-4a permits ths employer to restare the employee to his former position “or to a
pesitiar of like seniaity, status and pay,”and ad& the stipuktiaa tbat the employee must
remain ‘phyllcally and mentally qualifkd to perform the dutks of uch positioha It is
well established tha& where two statutes are In direct aonflkb the ktter enactment
ymaz e State v. Dsncer, 291 tLW.td 504 (Ten. Civ. App. - Caper Christi ‘g6.5, writ
) 8~ ths present versiat of section ‘Ib of artkk 5y65 was enacted m 1965,
and secUo;c’l of artkk 62Stda was kst amended in 1977, it folkws that the ktter must
controL Weconclude, therefore, that as to all but those persons acepted thereby, article
6252-4a permits the state to restore the empkyw eithar to his pr~k~l p~sitian a to one
of like seniaity, status end pay.
SUMMARY
A state employee who k waged in %uthorked train@ la tktp
in the state military forcea k imtitkd to receive wmpensation for
uptoiiiteenU5)w~ingda~~ycar~rlnewhich~k~t
from h& re6ulsr employment. As to all but those persons acepted
thereby, artick 6252-4a, V.T.C& permits a state sgency either to
restore a returning ~memberof the National Quard to his farmer
gGmzthyp egancy, a to another position %$fIike sen[orIty,
.
MARK ~WHITE
Attorney General of Taaa
JOBN W. PAINTRR,JR.
Piwt Assistant Attorney General
TRD L. HARTLRY
Executive Assistant Attorney General
p. 69
HworabkJuvb Yllkr - PegePour W-29)
APPBovIID#
OPINloNCOYMrrrEE
p. 90