Untitled Texas Attorney General Opinion ( 1975 )

February 18, 1975
The Honorable Everett L. Anschutz Opinion No. H- 531
Executive Secretary
Employees Retirement System of Re: Employees Retirement
Texas System computation of credit
Box 12337, Capitol StatiDn for military service.
Austin, Texas 78711
Dear Mr. Anschute:
You have requested our opinion concerning the construction of
article 6228a, section 4-G, V. T. C. S., insofar as it allows retirement
credit to be granted for “full months in actual service” in the military.
Article 622ga, section 4-G, provides in pertinent part:
Any.person applying for credit authorized by
this subsection, shall pay to the Employees
Retirement System a sum equal to the number
of full months in actual service. . . . (Emphasis
added).
The word “full” was added by Acts 1973, 63rd Leg., ch. 394, p. 871.
You state in your request that prior to this amendment you construed
“month” to mean “calendar month” as required by article 23(15), V. T. C, S,
You state that you:
. . * used the spare days in the calendar months at
the beginning and end of a member’s military ser-
vice . . . [and] if the spare days totaled 30 or more
[you] counted an extra ‘so called’ calendar month,
[thereby creating] a calendar month for administra-
tive purposes.
p. 2393
.’ l
The Honorable Everett L. Anschutz page 2 (H-531)
However, upon the addition of the word “full” to article 6228a, section 4,
you have ceased giving credit for partial months which total 30 days,
construing “full” to require complete months as they appear on the
calendar.
It is well established that the word “month” is to be construed as
“calendar month. ” V. T. C. S. art. 23(15); Gardner v. Universal Life &
Accident Ins. Co. , 164 S. W. 2d 582 (Tex. Civ. App. --Dallas 1942, writ
dism’d);Attorney General Opinion O-1492 (1939). However, “calendar ’
month” is subject to two different constructions. It may be construed as
complete months as they appear on the calendar: for example, under
this construction there is one calendar month in a period from September
4 to November 4 (viz. October). It may also be construed as a period
from a given day in one month to a day of the corresponding number in
the next month. A period from September 4 to November 4 would thereby
include two calendar months. 86 C. J. S. Time $10.
It is apparent that you have construed calendar month to mean
complete months as they appear on the calendar. There is some authority
for this construction. See Ex Parte Neisler, 69 S. W. 2d 422 (Tex. Grim.
App. 1934): Chrvsler Corporation v. Delaware, 163 A. 2d 239 (Del. 1960).
The great weight of authority, however. construes “calendar months” other-
wise. Gardner v. Universal Life & Accident Ins. Co., supra; Attorney
General Opinion O-1492 (1939); Fogel v. Commissioner of Internal Revenue,
203 F. 2d 347 (5th Cir. 1953); Krajniak v. Wilson, 249 A. 2d 249 (Conn. 1968) ;
Brown v. City of Omaha, I,37 N. W. 2d 814 (Neb. 1965); Odom v. Odom, 130
So. 2d 10 (Ala.1961); Parseghian v. Parseghian, 178 S. W. 2d 49 (,Ark. 1944);
Minard V. Burtis, 53 N. W. 509 (Wis.1892); c.f. Siebert v. Sally, 238 S. W.
2d 266 (Tex. Civ. App. --Galveston 1951, noTit); Price v. Wood, 88 S. W.
2d 530 (Tex. Civ. App. --Beaumont 1935 , no writ).
“Calendar month” is defined in these cases as a period of time
“from a given day in one month to a day of the corresponding number in
the next or specified succeeding month. ” Gardner v. Universa,l Life &
Accident, supra at 583. If the specified succeeding month contains no
day of the corresponding number, a calendar month ends on the last day
of that month. Odom v. Odom, *, (e.g. August 31, 1974 to April 30,
1974 is seven calendar months).
p. 2394
The Honorable Everett L. Anschutz page 3 (H-531)
Generally, a calendar month is not completed until the correspond-
ing day in the next month. However, we are aware that military service
is usually completed on the day preceding the day numerically correspond-
ing to the starting day. Whether the first and last days of a period should
be counted depends on the facts of the particular case, for courts will
adopt the construction that will uphold bona fide claims. Hazlewood v.
Rol(an, 67 S. W. 80 (Tex. Sup. 1902); Hill v. Kerr, 14 S.W. 566 (Tex. Sup.
1896); Watkins v. P. J. Willis & Bro., 58 Tex. 521 (1883); O’Connor v.
Towns, 1 Tex. 107 (1846); Eyl v. State, 84 S. W. 607 (Tex. Civ. App.
1904~; writ ref.). 55 Tex. Jur. 2d Time 5 8. Statutes involving a question
of first and last days of a period should be given “such a construction . . .
as would operate most to the ease of parties entitled to favor, and by
which rights would be recured . . . . ‘I O’Connor v. Towns, supra at 114.
In Attorney General Opinion H-348 (1974), we noted that statutes
providing retirement benefits are to be liberally construed so as to
secure the benefits &tende& 53 Tex. Jur. 2d Statutes 5157. --
See Woods
v. Reilly, 218 S. W. 2d 437 (Tex. Sup. 1949); Teacher Retirement System
v.~ Duckworth, 260 S. W. 2d 632 (Tex. Civ. App. --Ft. Worth 1953),
opinion adopted 264 S. W. 2d 98 (Tex. Sup. 1954). In addition, the cases
interpreting “calendar months ” have dealt with procedural time limita-
tions and contract clauses. We feel that an evaluation of the duration of
military service involves a quite different situation, one where the first
day of service should be considered as a complete day. In conjunction
with the state’s public policy concerning beneficial statutes, these
circumstances compel a modification of the general rule. Accordingly,
it is our opinion that in the context of military service a calendar month
is a period of time from the starting day to the day preceding the numerically
corresponding day in the next month.
The addition of the word “full” to article 6228a, section 4, compels
no different conclusion. The amendment’s bill analysis which was before
the Legislature expresses no such purpose. Senate Bill 899 (1973) (Bill
Analysis). In our opinion, the word “full” was intended to expressly exclude
partial calendar months from the operation of section 4. For example, an
employee who served in the military from August 15, 1958 until October 13,
1960, may pay the system for 25 calendar months of service, but not for
25 and 29130 months.
p. 2395
The Honorable Everett L.Anschutz page 4 (H-531)
SUMMARY
“Full months” as used in article 6228a,
V. T. C. S., means full calendar months. The
number of full calendar months included in a
period of military service is the number of
monthly segments from the starting date to
the last day of the period which directly pre-
cedes a date numeridally corresponding to
the starting date.
Very truly yourrr,
Attorney General of.Texas
DAVID M. KENDALL, First Assistant
Opinion Committee
p. 2396