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 apolitical subdivision thereof, whois amemberof a reserve component of the ArmedForces, entitled to be paid his regular salary by h1s employe,r while he is on active duty with his reserve unit, 80long 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?

Youhave requested the opinion of this office as to whether an employee of the State or a political subdivfsion thereof, whofe amemberof 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 ArmedForces 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 andemployees of the State of Texas andof any county or political subdivision thereof, including munlclpalltiee, whoshall be membersof the National Guardor OfYlcial Militia of Texas, or members of any of the Re8eNe Componentsof 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 salaryHon. Franklin L. Smith, page 2 (WW-1477)

on all days during which they shall be engaged In field or coast defense training andall days of parade or encampment, ordered or authorized by proper authority.

“Sec. 2. All officers and employees of the State of Texas andof any county or polltical subdivision thereof, Including munlcipallties, whoshall be membersof the National Guard or Official **Militia** of Texas, or membersof any of the Reserve Components of the ArmedForces, shall be entitled to leave of~absence from their respective dutieswithout loss of time or efflclency rating or vacation time or salary onall days onwhich 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,anyone calendar year.” Controversy has arisen over the suggestion that this statute should be interpreted so as to insure the employee, t$:~~;: will suffer nodecrease in salary during his military

. This wasthe 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 whoshall be membersof the National Guardor official militia of Texas, or membersof anyof the Reserve Components of the ArmedForces, 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 whoshall be members of the Mational Guardor official militia of Texas, or members of anyof 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 andemployees of the State of Texas whoshall bemembersof the National Guardor official militia of Texas, or membersof any of the Reserve Components of the AnnedForces, shall be entitled to leave of absence 

### fromtheir respective duties wlthout lose of time or efflalency rating on all daye onwhich they shall be ordered byproper authority to duty with troops or field exercises, or for instruction, for not to exceed fifteen (15) 

### aa98In any one calendar year; provided, however, that the State Comptroller shall pay to the officer or employee the difference. be

### tweenhis base pay andallowances whenon active duty, as certified by said officer or employee, andhis salary from the State of Texas whenthe latter la greater, andwhenauthprized to do so by the head .ofthe Department or the directing board of an institution or agency uhere ,suahofficer 

### oremployee is employed." This last-quoted statute 

### wasenacted by the Legislature In 1949andmaybe 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 nopay andthat the 

### employerwould makeupthe difference between the employee's ArmedServlces payandhis regular State salary. In 1953, the Legislature amendedthis statute by the enactment of Artlale 5769b-1, portions of which have been quot

### ea. 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 payfrom the ArmegForces andhis salary from the State of Texas, whenthe latter Is greater. Further, this later statute specifically repealed the earlier statute, as shownby Section 5 thereof. Bythe 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." TheLegislature makesno reference to partial losses of time or to grants of authority to makeadjustments in any of these allowances. Further, In the sense that the word "salary" isHon. Franklin L. Smith, page 4 (W-1477)

used, with reference to State employees, Black's LawDictionary, 4th Rd., defines it as meaning, "Afixed, annual, periodical amountpayable for services anddepending upon the time of employment andnot the amount‘of servlc.es rendered." Theamountthat the employee insentitled to receive Is fixed upon anannual basis. TheState Comptroller or other disbursing officer has noauthority 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 anyauthority to makea salary adjustmentwhere military training for aperiod 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 whocontribute their time andenergy 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 ~ofthis office that It wasthe Intent of the Legislature In enacting Article 5769b-1, to provide that a State employee would continue to drawhis full salary during the time hewas engaged In field training with a reserve component of the Armed Forces, provided such period did not exceed fifteen days per year. Weappreciate the able brief filed by you in connection with this opinion.

SUMMARY"

t. Anemployee of the State, or a political subdivision thereof, whop is amemberof a reserve component of the ArmedForces, Is entitled, by Article 5769b-1, Vernon's Civil Statutes, to be paid his regular salary byhis employer while he is onactive duty with his reserve unit, so long as such military duty does not exceed fifteen days, even though heHon. Franklin L. Smith, page 5 (WI-1477)

is als6 paid by the ArmedForces for his military duty.

Yours very truly, WILLWILSON Attorney General of Texa

MLQ~:ms

APPROVED: OPINIONCOMMITTEE Cecil C. Rotach, Chairman Pat Bailey **Marvin** Thomas REVIEWEDFCRTHE

ATTORNEY

GENERAL By: Leonard Passmore