TIIB: ATNDRNEY GENERAL 

OF TEXAS 

Au-. mExA0 767ll 

Pebruary 9, 1977 

The Honorable Henry Rothell 

Administrator 

Texas Employment COKURiSSiOn 

Austin, Texas 70770 

Opinion No. H-941 

Re: Vacation entitlement 

of state employees who 

return to state employment 

after service in the armed 

forces. 

Dear Mr. Rothell: 

You have requested our opinion concerning the rights 

of a state employee who returns to state employment after 

service in the armed forces with respect to vacation and 

sick leave entitlement. 

Article 6252-4a, V.T.C.S., provides in part for the 

restoration to employment of state employees following their 

discharge from the armed forces. Two opinions of this office 

have held that persons reemployed are entitled to longevity 

credit for pay purposes for the time spent in the military. 

Attorney General Opinions M-886 (1971); M-250 (1968). 

These opinions were based upon a liberal interpretation of 

section 3 of article 6252-4a, which provides in part: 

Any person who is restored to a position . . . 

shall be considered as having been on furlough 

or leave of absence . . . and shall be entitled 

to participation in retirement or other benefits 

to which employees of the Stateof Texas . . . 

are, or may be, entitled . .'. . (Emphasis added). 

p. 3936 
r-. - 

The Honorable Henry Rothell - Page 2 (H-941) 

In M-250 and M-886, the language "or other benefits" was 

construed to require the inclusion of time spent in the 

military within the employee's longevity of employment. 

We see no distinction between longevity for pay purposes and 

longevity of employment for purposes of vacation and sick 

leave entitlement. Accordingly, in our opinion, state 

employees who return to state employment following military 

service are entitled to the inclusion of the time spent in 

the military in the determination of their longevity of 

state employment for purposes of vacation and sick leave 

entitlement. However, we do not perceive any indication 

that the Legislature intended that an employee accrue 

vacation and sick leave while serving in the armed forces. 

These benefits are forms of compensation and generally 

accrue only while an employee is on the state payroll. 

See General Appropriations Act, art. 5, S 7, Acts 1975, 

mh Leg., ch. 743 at 2849. 

You have referred us to section 7d of article 5 of 

the Appropriations Act, 

veterans' reemployment. 

as well as to federal law concerning 

Section 7d provides for vacation 

and sick leave accrual for: 

An employee called to active ,duty 

during a national emergency by a reserve 

branch of the United States Armed Forces. . . . 

This appears to be a safeguard measure in the event of a 

national emergency requiring the activation of reserve 

military forces, and there is no indication that it is 

applicable to the individuals involved here. 

The relevant federal law is found in 38 U.S.C. 2021, 

which provides for veteran reemployment rights. In 1974 

section (a)(B) thereof was amended to apply to employees 

of states. However, the Act applies only to persons leaving 

military service after its effective date , which was December 3, 

1974. See note following section 2021; Field Letter 23, 

U.S. Dept. of Labor. In addition, the statute does not 

require the accrual of sick leave and vacation benefits 

while on active duty; it is merely suggested as the "sense 

of Congress." 38 U.S.C. 2021(b) (2). Consequently, the 

federal law does not conflict with state law and does not affect 

our decision. 

p. 3937 
The Honorable Henry Rothell - page 3 (H-941) 

SUMMARY 

A state employee returning to State 

employment following service in the 

military is entitled to have his time 

on active duty included within his 

longevity of employment for purposes 

of vacation and sick leave entitlement, 

but does not accrue vacation or sick leave 

while on active duty and not in the employ 

of the state. 

APRROVED: 

Very truly yours, 

/u Attorney General 

Opinion Committee 

of Texas 

p. 3938