February 18, 1975

The Honorable Everett L. Anschutz Executive Secretary Employees Retirement System of Texas Box 12337, Capitol StatiDn Austin, Texas 78711 Opinion No. H- 531 Re: Employees Retirement System computation of credit for military service.

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 offull months in actual service.
. . .(Emphasis added). The word “full” was added byActs 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 ofa member’s military service
. . . [and] if the spare days totaled 30or more [you] counted an extra ‘so called’ calendar month, [thereby creating] a calendar month for administrative purposes.

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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 30days, construing “full” to require complete months as they appear onthe 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. , 164S.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 aperiod from a given day in one month to a day ofthe corresponding number in the next month. A period from September 4 to November 4would 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, 163A. 2d 239 (Del. 1960). The great weight ofauthority, however. construes “calendar months” otherwise. Gardner v. Universal Life &Accident Ins. Co., supra; Attorney General Opinion O-1492 (1939); Fogel v. Commissioner of Internal Revenue, 203F. 2d 347 (5th Cir. 1953); Krajniak v. Wilson, 249A. 2d 249 (Conn. 1968); Odom, 130 Ark. 1944); Brown v. City ofOmaha, I,37N.W. 2d 814 (Neb. 1965); Odom v. So. 2d 10 (Ala.1961); Parseghian v. Parseghian, 178S.W. 2d49 (, Minard V. Burtis, 53N. W. 509 (Wis.1892); c.f. Siebert v. Sally, 238S.W. 2d 266 (Tex. Civ. App. --Galveston 1951,noTit); Price v. Wood, 88S.W. 2d 530 (Tex. Civ. App. --Beaumont 1935 ,nowrit).

“Calendar month” is defined in these cases as a period oftime

“from a given day in one month to a day ofthe 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 ofthat month. Odom v. Odom, *, (e.g. August 31, 1974toApril 30, 1974is seven calendar months).

p. 2394The Honorable Everett L. Anschutz page 3 (H-531)

Generally, a calendar month is not completed until the corresponding day in the next month. However, we are aware that military service is usually completed on the day preceding the day numerically corresponding 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, 67S.W. 80 (Tex. Sup. 1902); Hill v. Kerr, 14S.W. 566 (Tex. Sup. 1896); Watkins v. P. J. Willis & Bro., 58 Tex. 521(1883); O’Connor v. Towns, 1Tex. 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 offirst 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, 218S.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 limitations 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 oftime 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, 1958until October 13, 1960, may pay the system for 25 calendar months of service, but not for 25and 29130 months.

p. 2395The 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 precedes a date numeridally corresponding to the starting date. Very truly yourrr,

Attorney General of.Texas

DAVID M. KENDALL, First Assistant

Opinion Committee

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