QBffice of tly !Wmtep 65eneral
atate of ‘Qexae
DAN MORALES
ATTORNEY
GENERAL November 6,1996
Mr. Don Gilbert Opinion No. DM 422
Commissioner
Texas Department of Mental Health Re: Applicability of Senate Bill 646, Act of
and Mental Retardation May 27, 1995, 74th Leg., RS., ch. 854, 1995
P.O. Box 12668 Tex. Gen. Laws 4287, 4288, which relates to
Austin, Texas 7871 l-2668 veterans’ employment preference (RQ-856)
Dear Commissioner Gilbert:
You ask what preference a state employee who is a veteran has, pursuant to section 657.007
of the Government Code, in the event of a reduction in force (“RF’) in the employing agency.
Specifically, you seek to know whether such an employee has an absolute preference over other
employees in a RIP, or whether his or her veteran status is to be considered only when choosing
between or among otherwise similarly qualified employees.
Section 657.007 of the Government Code was added as part of Senate Bill 646, Act of
May 27,1995,74th Leg., RS., ch. 854, 1995 Tex. Gen. Laws 4287,4288. The general purpose of
Senate Bill 646, according to the bii analysis, was to require “public entities and the Texas Veterans
Commission to file a report stating the percentage of employees hired by the entity who are entitled
to veterans’ employment preferences.” House Comm. on State Affairs, Bill Analysis, S.B. 646, 74th
Leg. (1995).
Section 657.007, with which you are particularly concerned, provides as follows:
(a) An individual entitled to a hiring preference under this chapter is
also entitled to a preference in retaining employment if the public entity that
employs the individual reduces its workforce.
(b) The preference granted under this section applies on& to ihe extent
ihai a reduction in woryorce by an employing public entity involves other
employees of a similar we or classifiaiion. pmphasis added.]
In our view, the language emphasized above makes plain that the preference established by
section 657.007 is by no means an absolute one. This view moreover is reinforced by reading this
Mr. Don Gilbert - Page 2 (DM 422)
section in pari materia with section 657.003(a) of the Government Code, which defines the
reference in employment as follows:
An individual who qualifies for a veteran’s employment preference is
entitled to a preference . over other applications for the same position
who do not have a greater qualQicaiion.
There is no reason to assume that the preference available for retention purposes is greater
than that for hiring purposes. Nothing in the language or legislative history of section 657.007
indicates an intent to modify the nature of the preference. Accordingly, the preference is to be
taken into consideration when selecting among similarly qualified and similarly situated
employees, and does not require the retention of a veteran in place of a more qualified employee
who is not a veteran.
SUMMARY
The preference for veterans in a reduction workforce mandated by
section 657.007 ofthe Government Code is not absolute. Veterans are to
be preferred when selection among similarly qualified and similarly situated
employees, but are not entitled preference over more qualified employees
who are not veterans.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Gpiion Committee
Prepared by James E. Tomtelott
Assistant Attorney General
p. 2356