The Attorney General of Texas 

December 13, 1979 

MARK WHITE 

Attorney General 

Major General Willie L. Scott 

TexARNG, The Adjutant General 

P. 0. Box 5218 

Austin, Texas 78763 

Opinion No. MW- 10 0 

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 a liberal interpretation of article 6252-4a, section 

3, 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 State of Texas . . . are, or may be, entitled . . . 

(Emphasis added). 

Attorney General Opinion M-250 at 3, supra, was relied upon in M-886 

(1971) and H-941 (1977), and stated in part that such a person: 

. . . 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 a procedural and 

remedial statute is not only construed liberally but 

may be applied retroactively. 53 Tex. Jur.2d 53, 

Statutes, Sec. 29. 

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

Article 6813d, V.T.C.S., enacted by the 66th Legislature provides in section 1 that 

each qualified employee “is entitled 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 of benefits under these state statutes and we therefore will not address it. 

Your second question inquires whether service as a National Guard Technician prior 

to 1 January 1969 is 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 4 I, V.T.C.S., and the case of Maryland v. United States, 381 U.S. 41 

(1965). 

Article 6228a, section 4 I, V.T.C.S., provides: 

Prior to December 31, 1977, a member of the system with 

established creditable service as an officer or employee, exclusive 

of military credit, for no less than 12 of the 60 months 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 of the 65th Legislature with an effective 

date of September l, 1977, and specifically provides that if an 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 of employment as a National 

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 was not 

an “employee” of the United States, but an employee of the state. 

While the Maryland case is not directly in point regarding employment benefits such 

as retirement or longevity, it clearly points out that, at the time of the 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, 32 U.S.C., section 709, which classified these personnel as federal employees. 

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Major 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 is remedial legislation which recognizes the nature of this class 

of individuals as state employees during their prior service as National 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. We accordingly conclude that the remedial effects of 

article 6813d, section (l), V.T.C.S., apply to the qualified National Guard Technicians 

described in article 6228a, section 4 I, 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 by article 6813d, V.T.C.S. 

Very truly yours, /7 

MARK WHtTE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Bob Gammage 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

David B. Brooks 

Bob Gammage 

Susan Garrison 

Rick Gilpin 

William G Reid 

Bruce Youngblood 

Lonny Zwiener 

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