FVIlLL WILSON

ATI-0RNEY GENERAL Aus-rxzs PIL.TEXAS

October 18, 1962

Mr. Charles L. Morris Executive Director VeteransAffairs Commission Austin, Texas OpinionNo.

### WW-1453
Re: Whether certain State employees will be eligible to be restored to state employmentunder Article 6252-4,Vernon's Civil StatDear Mr. Morris: utes, under stated facts.

From your letter requestingan opinion from this office, we quote as follows:

“We desire the opinion ofyour office concerning re-employmentrights for State employees after servingwith the Armed Forces, as enacted in Article 

### 6252-4,Vernon's Civil Statutes. "This officehas had inquiries from State agencies concerning State employeeswho were called into active duty with the 49th Armored Division in 1961, and were to have been releasedwith othermembers of the 49th Division in August, 1962. Certain State employeeshave requested,and have been ordered to anotheryear of active duty. l'Your opinion is requested as towhether these certain State employeeswill be eligible for restoration of State employment after being released from this subsequentperiod of service.
"Your opinion is necessary due to the fact that State agencies need a clarificationof this Statute, concerning re-employmentof State employeeswhen they are eventuallyreleased from the Armed Forces, so that employment of personneland other personnel practices can be planned in accordancewith your construction of this Statute."Mr. Charles L. Morris, page 

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In 

### 1961~~

with the nation concernedwith the crisis over Berlin, the President declared that there existed a state of national emergency,and requested Congress to grant him the power to order to active federal duty certain units and members of the 'ReadyReserve.'

Congressresponded to the President'srequest by passing a Joint Resolutionwhich authorized the President to order units and members in the Ready Reserve to active federalmilitary duty for a period of notmore than twelvemonths. Also, this Resolution provided that the President,prior to the expiration of the initial period, could authorize the Secretary of Defense to extend themilitary status of such units and members for an additional twelvemonth period.

This Joint Resolution of Congressreads as follows:

"ARMEDFORCES-READYRESERVE PUBLIC LAW 87-117: 75 STAT. 24?

(S.J.Res. 120) "JointResolution to authorize the President to order units and members in the Ready Reserve to active duty for not more than twelvemonths, and for other purposes. "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That: "Notwithstandingany other provision of law, until July 1, 

### 1962,the Presidentmay, without the consent of the persons concerned, order any unit, and any member not assigned to a unit organized to serve as a unit, in the Ready Reserve of an armed force to active duty for not more than twelve consecutivemonths. However, not more than two hundred and fifty thousandmembers of the Ready Reservemay be on active duty (otherthan for training),without their consent,under this section at any one time.
Vet. 2. Notwithstandingany other provision of law, until July 1, 

### 1962,the Presidentmay authorize the Secretary of Defense to extend enlistments, appointments,periods of active duty, periods of active duty for training, periods of obligated service, or othermilitary status, inMr. Charles L. Morris, page 

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any component of an armed force or in the National Guard that expire before July 1, 1962, for not more than twelvemonths. "ApprovedAugust 1, 1961."
Pursuant to this Resolution and pre-existing statutory authorization, the President issued the following executive orders:
"EXECUTIVE ORDERS
NO. 

### 10957 August 

### 15, 1961,26 F.R. 

### 7541
"ASSIGNINGAUTHORITYWITH RESPECT TO ORDERING PERSONSAND UNITS IN THE READY RESERVE TO ACTIVE DUTYAND WITH RESPECT TO THE EXTENTION OF ENLISTMENTSAND OTHER PERIODS OF SERVICE IN THEARMED FORCES "Byvirtue of the authorityvested in me by the Joint Resolution of August 1, 

### 1961 (P.L. 

### 87- 117),and by section 301 of title 3 of the United States Code and as President of the United States, it is hereby ordered as follows: "Section 1. The Secretary of Defense, and, when designatedby him for the purpose, any of the Secretariesof themilitary departments of the Department of Defense, are hereby authorized and empowered to exercise the authorityvested in the Presidentuntil July 1 

### 1962,by section 1 of the Act of August 1, 1961 tPublic Ian 87-117) to order without the consent of the persons concerned,any unit, and any member not assigned to a unit organized to serve as a unit, in the Ready Reserve of an armed force to active duty for not more than 12 consecutivemonths, provided there are not more than 250,000members of the Ready Reserve thereby on active duty (otherthan for training)without their consent at any one ,time. However, the Secretary of Defensemay not order any unit in the Ready Reserve of an armed force to active duty, other than active duty for trainingunder this section without the approval of the President. "Section 2. In pursuance of the provisions of section 2 of the said Joint Resolutionof AugustMr. Charles L. Morris, page 

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1, 

### 1961,the Secretary of Defense is hereby authorized to extend enlistments,appointments, periods of active duty, periods of active duty for training,periods of obligated service, or othermilitary status, in any component of an armed force or in the NationalGuard that expire before July 1, 

### 1962,for not more than twelvemonths.
JOHNF. KENNEDY
THE WHITE HOUSE August 10, 19bP
In accordancewith these executive orders, the Secretary of Defense in the fall of 1961, ordered the 49th Armored Division to active federal duty. ,

Section 1 ofArticle 6252-4 reads as follows:
"Sec. 1. Any employee of the State of Texas, other than a temporary employee, an elected official or one servingunder an appointment which requires confirmationby the Senate, who leaves his position in time of war or during the national emergency and enters themilitary, air or naval forces of the United States or other active Federalmilitary duty or serviceby reason of induction into the armed forces of the United States or in compliancewith orders to active Federalmilitary duty, or enters serviceas a member of the Texas NationalGuard or Texas State Guard or as a member of any of the reserve components of theArmed Forces of the United States shall, if discharged, separated or released from such activemilitary serviceunder honorable conditions, be restored to employment in the same department, office, commission,board or other agency of the State constitutingemploymentby the State of Texas, and to the same position held at the time of induction or order to active Federal or Statemilitary duty or service, or t0 a position of like seniority, status and pay if still physically and mentally qualified to perform the duties of such position."
There are no provisions in this Sectionwhich limit or otherwise specify the period of time a State employee is authorized to serve on active federal duty in order to be entitled upon honorable release to restoration of State employment. ItHr. Charles L. Morris, page 

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is our opinion that once a State employee, in time of national emergency, complieswith an order to active federalmilitary duty, the period of service is immaterial to the right of restoration of State employment. We are of the opinion that such rightvests at the time such individual is discharged, separated or released from active federal serviceunderhonorable conditions.

On the basis of the clear and unambiguous language of this Section, you are advised that those State employees, other than a temporary employee, an elected official, or one serving under an appointmentwhich requires confirmationby the Senate, who leave their positions in time of national emergency in compliancewith an order to active federal service in theArmed Forces of the United States, are entitled, upon release under honorable conditionsfrom active duty, to restoration of State employment in the same positionheld at the time of the order to active federal duty, or to a position of like seniority, status and pay if still physicallyand mentally qualified to perform the duties of such positions.

SUMMARY Certain State employeesare entitled to restoration of State employment, upon release from active federal military duty. Sincerelyyours,
WILL WILSON Attorney General of Texas

IRW :mkh :wb Assistant
APPROVED: OPINIONCOMMITTEE Howard Mays, Chairman Marvin Thomas Arthur Sandlin Malcolm Quick
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore