Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
March 9, 1981
Mr.Willie L. Scott Opinion No. MW-300
Major General, TexARNG
The Adjutant General Re: Whether teacher who voluntarily
Camp Mabry - P. 0. Box 5218 attends military training is entitled to
Austin, Texas 78763 paid leave under article 5765, V.T.C.S.
Dear Mr. Scott:
You have requested our opinion as to whether, under the circumstances
set forth below, article 5765, V.T.C.S., affords a public school teacher a
right to 15 days of paid military leave from her teaching duties. The
employee in question is an enlisted member of the Air National Guard (ANG)
who desired a commission in the ANG and applied for acceptance in a six-
week ANG pre-commissioning course. She was accepted and orders were
issued regarding her attendance. She then applied to her school district for,
among other things, 15 days of paid military leave to cover part of the period
during which she would be absent from her teaching duties because of the
training. The district denied this request on the ground that because she
volunteered for the training, she was not entitled to paid military leave.
Article 5765, V.T.C.S., provides in pertinent part as follows:
Section 7. (a) AIL . . employees. . . of any. . .
political subdivision. . . who shall be members of the
State Military Forces, 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. . . salary on all days w
which they shall be engaged in authorized trainmg or
duty ordered or authorized by proper authority, for
not to exceed fifteen (15) davs m anv one calendar
year. (Emphasis added).
In Attorney General Opinion MW-240 (1980), we held that because
. article 5765 entitles a teacher to a leave of absence without loss of salary
on days during which he is engaged in military duty, not to exceed 15 days in
a calendar year, a teacher who is so engaged may not be required to pay for
a substitute employed by the school district during that time. The opinion
did not differentiate between instances in which a teacher is ordered to
perform military duty and those in which he volunteers for duty.
P- 957
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Mr. Willie L. Scott - Page Two
In our view, the answer to your question depends entirely upon the construction
placed upon the underlined portion of article 5765. It is well established that statutory
language will be given literal effect when it is unambiguous and it embodies a definite
meaning, and when there is nothing which indicates that the legislature meant anything
other than what it apparently said. Brazes River Authority v. City of Graham, 354
S.W.2d 99 (Tex. 1961). We think this rule is clearly applicable here. We therefore
reach the following conclusions: (1) an employee’s right to a leave of absence does not
depend upon whether the employee voluntarily requests military training or duty, but
exists if the training or duty is ordered or authorized by proper authority; (2) “proper
authority” refers to those with the requisite authority to order or authorize members
of the state military forces or the reserve components of the armed forces to engage
in authorized military training or duty.
A copy of the orders which was submitted with this opinion request indicates that
these orders were issued by a representative of the Adjutant General on his behalf. In
our opinion the Adjutant General is unquestionably a “proper authority” within article
5765. Accordingly, because in this instance the military training was ordered and
authorized by proper authority, we conclude that the employee is entitled to a paid
leave of absence from her teaching duties for not to exceed 15 days per calendar year.
SUMMARY
Article 5765, V.T.C.S., affords a public school teacher the
right to a leave of absence from teaching duties without loss of
salary on days during which the teacher is engaged in authorized
military training or duty which is ordered or authorized by
proper authority, not to exceed 15 days in any one calendar
year, without regard to whether the employee voluntarily
requests the training or duty. The Adjutant General is a “proper
authority” within article 5765.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
p. 958
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Mr. Willie L. Scott - Page Three
APPROVED:
OPINION COMMlTTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Barbara Marquardt
Bruce Youngblood
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p. 959