November 16, 1962 

Honorable Franlrlin E. SSnith 

County Attorney 

Nuecea County 

Corpus Chrlisti, Texas 

Opinion No. WW-1477 

Re: Is an employee of the State 

or a political subdivision 

thereof, who is a member of 

a reserve component of the 

Armed Forces, entitled to be 

paid his regular salary by 

h1s employe,r while he is on 

active duty with his reserve 

unit, 80 long aa such mllltary duty does not exceed 

fifteen days, even though he 

is also paid by the Armed 

Dear Mr. snfmith: Forces for his military duty? 

You have requested the opinion of this office as to 

whether an employee of the State or a political subdivfsion 

thereof, who fe a member of a reserve component of.the Anned 

Forces, ia entitled to be paid his regular salary by his employer wbkle he is on active duty with his reserve unit, so 

long as such nili- duty does not exceed fiiteen days, even 

though he is also paid by the Armed Forces for his military 

duty. 

Article 5769b-1, Vernon's Civil Statutes, is the statute which controls this particular question. This statute is 

quoted in pertinent part, as follows: 

"Section 1. All officers and employees 

of the State of Texas and of any county or 

political subdivision thereof, including munlclpalltiee, who shall be members of the National 

Guard or OfYlcial Militia of Texas, or members 

of any of the Re8eNe Components of the Armed 

Forces, shall be entitled to leave of absence 

from their respective duties without loss of time 

or efficiency rating or vacation time or salary 
Hon. Franklin L. Smith, page 2 (WW-1477) 

on all days during which they shall be engaged 

In field or coast defense training and all days 

of parade or encampment, ordered or authorized 

by proper authority. 

“Sec. 2. All officers and employees of 

the State of Texas and of any county or polltical subdivision thereof, Including munlcipallties, who shall be members of the National Guard 

or Official Militia of Texas, or members of any 

of the Reserve Components of the Armed Forces, 

shall be entitled to leave of~absence from their 

respective dutieswithout loss of time or efflclency rating or vacation time or salary on all 

days on which they shall be ordered by proper 

authority to duty with troops or field exercises, 

or for Instruction, for not to exceed fifteen 

(15) days In, any one calendar year.” 

Controversy has arisen over the suggestion that this 

statute should be interpreted so as to insure the employee, 

t$:~~;: will suffer no decrease in salary during his military 

. This was the situation under the prior form of this 

statute, For Information, the earlier statute, Article 5769b, 

Vernon’s Civil Statutes, Is quoted in pertinent part: 

“Section 1. All. officers and employees of 

the State of Texas who shall be members of the 

National Guard or official militia of Texas, or 

members of any of the Reserve Components of the 

Armed Forces, shall be entitled to leave of absence from their respective duties without loss 

of time or efficiency rating,cn all days during 

which they shall be engaged in field or coastdefense training, ordered or authorized by proper 

authority. 

“Sec. 2. All officers and employees of the 

State of Texas who shall be members of the Mational Guard or official militia of Texas, or members 

of any of the Reserve Components of the Armed 

Forces, shall be entitled to leave of absence 

from their respective duties without loss of time 

or efficiency rating on all days of any parade or 

encampment, ordered or authorized by proper authority. 

: 
Hon. Franklin L. Smith, Page 3 (WW-1477) 

“Sec. 3. All officers and employees of 

the State of Texas who shall be members of the 

National Guard or official militia of Texas, 

or members of any of the Reserve Components of 

the Anned Forces, shall be entitled to leave 

of absence from their respective duties wlthout lose of time or efflalency rating on all 

daye on which they shall be ordered by proper 

authority to duty with troops or field exercises, 

or for instruction, for not to exceed fifteen 

(15) aa98 In any one calendar year; provided, 

however, that the State Comptroller shall pay 

to the officer or employee the difference. between his base pay and allowances when on active duty, as certified by said officer or employee, and his salary from the State of Texas 

when the latter la greater, and when authprized to do so by the head .of the Department or 

the directing board of an institution or agency 

uhere ,suah officer or employee is employed." 

This last-quoted statute was enacted by the Legislature 

In 1949 and may be found In Chapter 523, page 954, Acts of the 

51st Legislature, Regular Session 1949. It can readily be 

seen that this statute provided that the employee would lose 

no pay and that the employer would make up the difference between the employee's Armed Servlces pay and his regular State 

salary. In 1953, the Legislature amended this statute by the 

enactment of Artlale 5769b-1, portions of which have been quotea. It will be noted that in this later statute, the Leglslature added officer8 and employeea of politic&l subdivisions 

and deleted that portion of the earlier statute requiring the 

State Comptroller to pay the officer or employee the difference 

between his pay from the Armeg Forces and his salary from the 

State of Texas, when the latter Is greater. Further, this 

later statute specifically repealed the earlier statute, as 

shown by Section 5 thereof. By the changes made, the Leglslature clearly evidenced an lntention,to alter the provisions 

regarding the payment of salary. 

In Article 5769b-1, the Legislature refers to “without 

loss of time or efficiency rating or vacation time or salary." 

The Legislature makes no reference to partial losses of time 

or to grants of authority to make adjustments in any of these 

allowances. Further, In the sense that the word "salary" is 
Hon. Franklin L. Smith, page 4 (W-1477) 

used, with reference to State employees, Black's Law Dictionary, 4th Rd., defines it as meaning, "A fixed, annual, 

periodical amount payable for services and depending upon 

the time of employment and not the amount ‘of servlc.es rendered." The amount that the employee ins entitled to receive 

Is fixed upon an annual basis. The State Comptroller or 

other disbursing officer has no authority to~vary the amounts 

payable except In specifically e,numeigted instances. By 

altering the statute as It has been altered in this case, it 

Is the opinion of this office that the Legislature has taken 

from the Comptroller any authority to make a salary adjustment where military training for a period of less than fifteen days Is concerned. 

The Legislature has consistently encouraged the performance of patriotic duties by employees of this State. It 

is well within the power of the Legislature to provide that 

employees who contribute their time and energy to Reserve 

duties should be paid their full salary by the State or political subdivision thereof, while such employee serves his 

required active duty training time. It is the opinion ~of this 

office that It was the Intent of the Legislature In enacting 

Article 5769b-1, to provide that a State employee would continue to draw his full salary during the time he was engaged 

In field training with a reserve component of the Armed 

Forces, provided such period did not exceed fifteen days per 

year. 

We appreciate the able brief filed by you in connection with this opinion. 

SUMMARY " 

t. 

An employee of the State, or a 

political subdivision thereof, whop 

is a member of a reserve component 

of the Armed Forces, Is entitled, by 

Article 5769b-1, Vernon's Civil Statutes, to be paid his regular salary 

by his employer while he is on active duty with his reserve unit, so 

long as such military duty does not 

exceed fifteen days, even though he 
Hon. Franklin L. Smith, page 5 (WI-1477) 

is als6 paid by the Armed Forces 

for his military duty. 

Yours very truly, 

WILL WILSON 

Attorney General of Texa 

MLQ~:ms 

APPROVED: 

OPINION COMMITTEE 

Cecil C. Rotach, Chairman 

Pat Bailey 

Marvin Thomas 

REVIEWEDFCRTHE ATTORNEY GENERAL 

By: Leonard Passmore