# The Attorney General of Texas

December 13, 1979 MARK WHITE Attorney General Major General Willie L.Scott TexARNG, The Adjutant General P. 0. Box5218 Austin, Texas 78763 Opinion No. MW- 100 Re: Application of article 6813d, V.T.C.S., to state employees returning after military service and to prior service of National Guard Technicians. Dear General Scott: You have requested our opinion whether periods of military service which otherwise entitle an individual to rights afforded under article 6252-4a, section 3, V.T.C.S., and chapter 43 of Title 38 U.S.C. are also applicable for longevity pay purposes under article 68134 V.T.C.S. Earlier 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 aliberal interpretation of article 6252-4a, section 3,which provides inpart:

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 State ofTexas

. ..are, or may be, entitled

... (Emphasis added). Attorney General Opinion M-250 at 3,supra, wasrelied uponin M-886 (1971)and H-941(1977),and stated inpart that such aperson:

. .. on returning from military leave prior to the effective date of Article 6252-4a, Vernon’s Civil Statutes, is entitled to credit for pay purposes for the time spent in military service. Such aprocedural and remedial statute is not only construed liberally but may be applied retroactively. 53 Tex. Jur.2d 53, Statutes, Sec. 29.

P. 311Major General Willie L.Scott - Page Two (Ml+100)

Article 6813d, V.T.C.S., enacted by the 66th Legislature provides in section 1that each qualified employee “isentitled to longevity pay of a maximum of $4 per month for each year of service as an employee of the state.
...” within the time limitations set out therein. AccorBngly, we conclude that the longevity pay benefits provided for in article 6813d,V.T.C.S., are applicable to those individuals entitled to the benefits provided for in article 62524a, section 3, V.T.C.S. Chapter 43 of Title 38 U.S.C. does not affect the provision ofbenefits under these state statutes and wetherefore willnot address it. Your second question inquires whether service as a National Guard Technician prior to 1January 1969is creditable as “years of service as an employee of the state” for purposes of longevity pay under article 68134 V.T.C.S. In this connection you refer to article 6228a, section 4I, V.T.C.S., and the case of Maryland v. United States, 381U.S. 41 (1965). Article 6228a, section 4I,V.T.C.S., provides: Prior to December 31, 1977, a member of the system with established creditable service asan officer or employee, exclusive of military credit, for noless than 12ofthe 60months immediately preceding the date of this amendment, may establish service performed as a National Guard Technician with the Texas Adjutant General’s Department if such service was performed prior to January l, 1969, and is not otherwise creditable in any state or federal retirement system. Service shall be established for retirement purposes upon payment in a lump sum of all applicable contributions, interest, and fees. All such amounts, and state matching funds therefor, shall be calculated in the manner and amounts provided in this Act for service not previously established Section 4, subsection I was added by Acts ofthe 65th Legislature with an effective date ofSeptember l, 1977,and specifically provides that ifan individual described therein follows the procedure set out within the prescribed time limits, that person may qualify for credit in the state retirement system for certain periods ofemployment asaNational Guard Technician. In the Maryland case, supre, the Supreme Court affirmed an appellate court opinion that the federal government was not liable under the Federal Tort Claims Act for the negligence of a National Guard officer and employee, because the negligent party wasnot an “employee” ofthe United States, but anemployee of the state. While the Maryland case isnot directly inpoint regarding employment benefits such as retirement orlongevity, it clearly points out that, at the time ofthe decision, National Guard personnel were to be regarded as employees of the state. This status was subsequently altered by Congress with the enactment of the National Guard Technicians Act, 32U.S.C., section 709, which classified these personnel asfederal employees.

P. 312Major General Willie L.Scott - Page Three (NW-100)

Although article 6228a, section 4 I, V.T.C.S., pertains to eligibility for the state retirement system for the described class of employees, and makes no reference to longevity pay benefits, it isremedial legislation which recognizes the nature of this class of individuals as state employees during their prior service asNational Guard Technicians It would be inconsistent with the required liberal construction of such statutes to find that the remedial effects of article 6813d, section 1,V.T.C.S., regarding longevity pay, should not apply to a described class of individuals recognized elsewhere by the legislature for remedial purposes. Weaccordingly conclude that the remedial effects of article 6813d, section (l), V.T.C.S., apply to the qualified National Guard Technicians described inarticle 6228a, section 4I,V.T.C.S. SUMMARY The longevity pay benefits provided for in article 6813d,V.T.C.S., are applicable to those individuals entitled to the benefits provided for in article 625‘&4a, section 3, V.T.C.S. Years of service as a National Guard Technician prior to January 1,1969, are creditable as years of service as an employee of the state for purposes of longevity pay, as esteblished byarticle 6813d,V.T.C.S. Very truly yours, /7

MARK WHtTE Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General TEDL.HARTLEY Executive Assistant Attorney General Prepared byBobGammage Assistant Attorney General APPROVED: OPINION COMMITTEE C.Robert Heath, Chairman David B.Brooks BobGammage Susan Garrison Rick Gilpin William GReid Bruce Youngblood Lonny Zwiener

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