Untitled Texas Attorney General Opinion ( 1979 )

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