November 16, 1962
Honorable Franlrlin E. SSnith
County Attorney
Nuecea County
Corpus Chrlisti, Texas
Opinion No. WW-1477
Re: Is an employee of the State
or a political subdivision
thereof, who is a member of
a reserve component of the
Armed Forces, entitled to be
paid his regular salary by
h1s employe,r while he is on
active duty with his reserve
unit, 80 long aa such mlll-
tary duty does not exceed
fifteen days, even though he
is also paid by the Armed
Dear Mr. snfmith: Forces for his military duty?
You have requested the opinion of this office as to
whether an employee of the State or a political subdivfsion
thereof, who fe a member of a reserve component of.the Anned
Forces, ia entitled to be paid his regular salary by his em-
ployer wbkle he is on active duty with his reserve unit, so
long as such nili- duty does not exceed fiiteen days, even
though he is also paid by the Armed Forces for his military
duty.
Article 5769b-1, Vernon's Civil Statutes, is the stat-
ute which controls this particular question. This statute is
quoted in pertinent part, as follows:
"Section 1. All officers and employees
of the State of Texas and of any county or
political subdivision thereof, including munl-
clpalltiee, who shall be members of the National
Guard or OfYlcial Militia of Texas, or members
of any of the Re8eNe Components of the Armed
Forces, shall be entitled to leave of absence
from their respective duties without loss of time
or efficiency rating or vacation time or salary
Hon. Franklin L. Smith, page 2 (WW-1477)
on all days during which they shall be engaged
In field or coast defense training and all days
of parade or encampment, ordered or authorized
by proper authority.
“Sec. 2. All officers and employees of
the State of Texas and of any county or pollti-
cal subdivision thereof, Including munlcipall-
ties, who shall be members of the National Guard
or Official Militia of Texas, or members of any
of the Reserve Components of the Armed Forces,
shall be entitled to leave of~absence from their
respective dutieswithout loss of time or effl-
clency rating or vacation time or salary on all
days on which they shall be ordered by proper
authority to duty with troops or field exercises,
or for Instruction, for not to exceed fifteen
(15) days In, any one calendar year.”
Controversy has arisen over the suggestion that this
statute should be interpreted so as to insure the employee,
t$:~~;: will suffer no decrease in salary during his military
. This was the situation under the prior form of this
statute, For Information, the earlier statute, Article 5769b,
Vernon’s Civil Statutes, Is quoted in pertinent part:
“Section 1. All. officers and employees of
the State of Texas who shall be members of the
National Guard or official militia of Texas, or
members of any of the Reserve Components of the
Armed Forces, shall be entitled to leave of ab-
sence from their respective duties without loss
of time or efficiency rating,cn all days during
which they shall be engaged in field or coastde-
fense training, ordered or authorized by proper
authority.
“Sec. 2. All officers and employees of the
State of Texas who shall be members of the Mation-
al Guard or official militia of Texas, or members
of any of the Reserve Components of the Armed
Forces, shall be entitled to leave of absence
from their respective duties without loss of time
or efficiency rating on all days of any parade or
encampment, ordered or authorized by proper author-
ity.
:
Hon. Franklin L. Smith, Page 3 (WW-1477)
“Sec. 3. All officers and employees of
the State of Texas who shall be members of the
National Guard or official militia of Texas,
or members of any of the Reserve Components of
the Anned Forces, shall be entitled to leave
of absence from their respective duties wlth-
out lose of time or efflalency rating on all
daye on which they shall be ordered by proper
authority to duty with troops or field exercises,
or for instruction, for not to exceed fifteen
(15) aa98 In any one calendar year; provided,
however, that the State Comptroller shall pay
to the officer or employee the difference. be-
tween his base pay and allowances when on ac-
tive duty, as certified by said officer or em-
ployee, and his salary from the State of Texas
when the latter la greater, and when authpriz-
ed to do so by the head .of the Department or
the directing board of an institution or agency
uhere ,suah officer or employee is employed."
This last-quoted statute was enacted by the Legislature
In 1949 and may be found In Chapter 523, page 954, Acts of the
51st Legislature, Regular Session 1949. It can readily be
seen that this statute provided that the employee would lose
no pay and that the employer would make up the difference be-
tween the employee's Armed Servlces pay and his regular State
salary. In 1953, the Legislature amended this statute by the
enactment of Artlale 5769b-1, portions of which have been quot-
ea. It will be noted that in this later statute, the Leglsla-
ture added officer8 and employeea of politic&l subdivisions
and deleted that portion of the earlier statute requiring the
State Comptroller to pay the officer or employee the difference
between his pay from the Armeg Forces and his salary from the
State of Texas, when the latter Is greater. Further, this
later statute specifically repealed the earlier statute, as
shown by Section 5 thereof. By the changes made, the Legls-
lature clearly evidenced an lntention,to alter the provisions
regarding the payment of salary.
In Article 5769b-1, the Legislature refers to “without
loss of time or efficiency rating or vacation time or salary."
The Legislature makes no reference to partial losses of time
or to grants of authority to make adjustments in any of these
allowances. Further, In the sense that the word "salary" is
Hon. Franklin L. Smith, page 4 (W-1477)
used, with reference to State employees, Black's Law Dic-
tionary, 4th Rd., defines it as meaning, "A fixed, annual,
periodical amount payable for services and depending upon
the time of employment and not the amount ‘of servlc.es ren-
dered." The amount that the employee ins entitled to receive
Is fixed upon an annual basis. The State Comptroller or
other disbursing officer has no authority to~vary the amounts
payable except In specifically e,numeigted instances. By
altering the statute as It has been altered in this case, it
Is the opinion of this office that the Legislature has taken
from the Comptroller any authority to make a salary adjust-
ment where military training for a period of less than fif-
teen days Is concerned.
The Legislature has consistently encouraged the per-
formance of patriotic duties by employees of this State. It
is well within the power of the Legislature to provide that
employees who contribute their time and energy to Reserve
duties should be paid their full salary by the State or poli-
tical subdivision thereof, while such employee serves his
required active duty training time. It is the opinion ~of this
office that It was the Intent of the Legislature In enacting
Article 5769b-1, to provide that a State employee would con-
tinue to draw his full salary during the time he was engaged
In field training with a reserve component of the Armed
Forces, provided such period did not exceed fifteen days per
year.
We appreciate the able brief filed by you in connec-
tion with this opinion.
SUMMARY "
t.
An employee of the State, or a
political subdivision thereof, whop
is a member of a reserve component
of the Armed Forces, Is entitled, by
Article 5769b-1, Vernon's Civil Stat-
utes, to be paid his regular salary
by his employer while he is on ac-
tive duty with his reserve unit, so
long as such military duty does not
exceed fifteen days, even though he
Hon. Franklin L. Smith, page 5 (WI-1477)
is als6 paid by the Armed Forces
for his military duty.
Yours very truly,
WILL WILSON
Attorney General of Texa
MLQ~:ms
APPROVED:
OPINION COMMITTEE
Cecil C. Rotach, Chairman
Pat Bailey
Marvin Thomas
REVIEWEDFCRTHEATTORNEYGENERAL
By: Leonard Passmore