## 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 employeeswho return to state employment after service in the armed forces.
Dear Mr. Rothell: You have requested our opinion concerning the rights of a state employeewho returns to state employment after service in the armed forceswith 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 reemployedare entitled to longevity credit for pay purposes for the time spent in themilitary. Attorney General Opinions M-886 (1971);M-250 (1968). These opinions were based upon a liberal interpretationof section 3 of article 6252-4a,which provides in part:

Any person who is restored to a position

. . . shall be consideredas having been on furlough or leave of absence
. . .and shall be entitled to participation in retirement or other benefits to which employeesof the Stateof Texas
. . . are, or may be, entitled

. .'.
. (Emphasisadded).

p. 3936

## r-. -

The HonorableHenry Rothell - Page 2 (H-941)

In M-250 andM-886, the language "orother benefits"was construed to require the inclusionof time spent in the military within the employee's longevityof employment. We see no distinctionbetween longevity for pay purposes and longevity of employment for purposes of vacation and sick leave entitlement. Accordingly, inour opinion, state employeeswho return to state employment followingmilitary service are entitled to the inclusionof the time spent in themilitary in the determination of their longevity of state employment for purposes of vacationand sick leave entitlement. However, we do not perceiveany indication that the Legislature intended that an employee accrue vacation and sick leave while serving in the armed forces. These benefits are forms of compensationand generally accrue only while an employee is on the statepayroll. See GeneralAppropriations 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 AppropriationsAct, veterans' reemployment.as well as to federal law concerning Section 7dprovides for vacation and sick leave accrual for:

An employee called to active ,duty during a national emergencyby a reserve branch of the United StatesArmed Forces.
. . . This appears to be a safeguardmeasure in the event of a national emergency requiring the activationof reserve military forces,and there is no indicationthat it is applicable to the individuals involvedhere. The relevant federal law is found in 38 U.S.C. 2021, which provides for veteran reemploymentrights. In 1974 section (a)(B)thereof was amended to apply to employees of states. However, the Act applies only to persons leaving military serviceafter its effective date,which was December 3, 1974. See note following section 2021;Field Letter 23, U.S. Dept. of Labor. In addition, the statutedoes not require the accrual of sick leave and vacation benefits while on activeduty; it ismerely suggestedas 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. 3937The 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 includedwithin 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 trulyyours,



# /u Attorney General

Opinion Committee of Texas

p. 3938