. ,
ENE GENERAL
OF TEXAS
The Honorable Charles L. Morris, Opinion No. B-853
Executive Director
Veterans Affairs Commission He: Disabled veterans
P. 0. Box 12277, Capitol Station employment preference.
Austin, Texas 78711
Dear Mr. Morris:
you ask for an opinion concerning the service credit
granted to persons who, in applying for state employment
requiring a competitive examination, establish the existence
of a service-connected disability. Specifically, you ask
whether eligibility for the credit is limited to persons
having a disability of ten per cent or more as established
by records of the Veterans Administration.
Article 4413(31), V.T.C.S., specifies the honorably
discharged military personnel who qualify for a preference
in state employment over other applicants for the same
position having no greater qualification. Section 3 of
article 4413(31) provides, in part:
In all public departments, commissions,
boards and other governmental agencies
and public works of this State which now
require or may hereafter require a com-
petitive examination under a Merit System
or Civil Service Plan of either or both
selecting and promoting employees, such
person who is otherwise eligible and
qualified for and entitled to preference
under this Act, who shall have been so
examined and shall have attained at least
the minimum required score for such test or
tests, shall have a service credit amounting
p. 3599
The Honorable Charles L. Morris - page 2 W-853)
to ten (10) points added to the earned rating,
j
person or-persons whose duty it is to
fill the position or employment applied
for. . . . (Emphasis added).
It should be noted that the provision above does not specify
a minimum percentage of disability required before the veteran
qualifies for the additional five-point preference.
Federal law prescribes a minimum of ten per cent (10%)
disability for purposes of compensation, 38 U.S.C. 88 314, 334,
355, but sets no such minimum amount for preference for
United States Civil Service positions. "Disabled veteran" is
defined in 5 U.S.C. S 2108 as an individual who has served
on active duty, been honorably discharged, and "has estab-
lished the present existence of a service-connected dis-
ability or is receiving compensation, disability retirement
benefitsTor pension . . . ." (Emphasis added). Under 5
U.S.C. s 3309, a disabled veteran (regardless of percentage
of disability) is granted ten additional points above his
earned rating on a competitive exam, as opposed to five
points for a veteran who has no disability. Under 5 U.S.C.
s 3313, for certain competitve positions, the names of
veterans having a compensable disability (i.e. a disability
of ten per cent or more) are placed on appropriate registers
ahead of all other applicants -- including any veterans
having a disability rated at less than ten per cent. The
latter provision, however, is apparently the only statute
which distinguishes degrees of disability for purposes of
preference eligibility; the significance is that a disabled
veteran whose disability is rated less than ten per cent is,
nonetheless, considered disabled, when so certified by the
Veterans Administration. See - Handbook for Veterans
Benefit Counselors H-27-73'=r; at page V-2-l.
p. 3600
The Honorable Charles L. Morris - page 3 (H-853)
The Texas statute, article 4413(31), section 3, requires
only that "official records" establish the existence of a
service-connected disability in order for the veteran to
be entitled to the additional five point credit on the Merit
System or Civil Service Plan earned rating. The language
does not require that the disability reach the ten per cent
level required for compensation from the federal government.
Since the federal government'certifies disablity in ten per
cent increments for compensation purposes, a veteran who has
a service-connected disability which does not reach the level
of ten per cent would be certified for those purposes at zero,
even though for other purposes he isrecognized as being,
disabled. A service-connected disability rated' at iero‘per
cent for compensation purposes which is, nonetheless, certified
as a service-connected disability by official records,
qualifies the veteran for the five point credit. Thus,
neither the Merit System Council nor any other agency may
limit the five point credit to veterans having disabilities
rated at ten per cent or more.
SUMMARY
Any service-connected disability estab-
lished by official records entitles a
person otherwise qualifying for preference
under article 4413(31), V.T.C.S., to an
additional five point credit on his earned
rating on a competitive Merit System or
Civil Service Plan exam. Such credit
may not be limited to veterans whose dis-
abilities are rated at ten per cent or
more by the Veterans Administration.
General of Texas
p. 3601
The Honorable Charles L. Morris - page 4 W-853)
Opinion Committee
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p. 3602