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### ENE GENERAL OF TEXAS

The Honorable Charles L.Morris, Opinion No. B-853 Executive Director Veterans Affairs Commission He: Disabled veterans P. 0. Box 12277, Capitol Station employment preference. Austin, Texas 78711
Dear Mr. Morris:
you ask for an opinion concerning the service credit granted topersons who, inapplying for state employment requiring a competitive examination, establish the existence of a service-connected disability. Specifically, you ask whether eligibility for the credit is limited to persons having a disability of tenper cent ormore as established by records of theVeterans Administration. Article 4413(31), V.T.C.S., specifies the honorably discharged military personnel who qualify for apreference in state employment over other applicants for the same position having no greater qualification. Section 3of article 4413(31) provides, inpart:

In all public departments, commissions, boards and other governmental agencies and public works of this State which now require ormay hereafter require a competitive examination under aMerit System or Civil Service Plan of either or both selecting and promoting employees, such person who is otherwise eligible and qualified for and entitled topreference under thisAct, who shall have been so examined and shall have attained at least theminimum required score for such test or tests, shall have a service credit amounting

p.3599The Honorable Charles L.Morris -page 2 W-853)

to ten (10)points added to the earned rating, j

person or-persons whose duty it is to fill theposition or employment applied for.

. . . (Emphasisadded).
It should be noted that the provision above does not specify aminimum percentage of disability required before theveteran qualifies for the additional five-point preference. Federal lawprescribes aminimum of tenper cent (10%) disability forpurposes of compensation, 38U.S.C. 88 314, 334, 355,but setsno suchminimum amount forpreference for United States Civil Service positions. "Disabled veteran" is defined in 5U.S.C. S 2108 as an individual who has served on active duty, been honorably discharged, and "has established the present existence of a service-connected disability or is receiving compensation, disability retirement benefitsTor pension

. . . ." (Emphasis added). Under 5 U.S.C. s 3309, a disabled veteran (regardless of percentage of disability) isgranted ten additional points above his earned rating on a competitive exam, as opposed to five points for aveteran who has no disability. Under 5U.S.C. s 3313, for certain competitve positions, the names of veterans having a compensable disability (i.e.a disability of ten per cent ormore) are placed on appropriate registers ahead of all other applicants -- including anyveterans having a disability rated at less than tenper cent. The latter provision, however, isapparently the only statute which distinguishes degrees of disability forpurposes of preference eligibility; the significance is that a disabled veteran whose disability is rated less than tenper cent is, nonetheless, considered disabled, when so certified by the Veterans Administration. See - Handbook forVeterans Benefit Counselors H-27-73'=r;atpage V-2-l.

p.3600The Honorable Charles L.Morris -page 3 (H-853)

The Texas statute, article 4413(31), section 3,requires only that "official records" establish the existence of a service-connected disability inorder for the veteran to be entitled to the additional five point credit on theMerit System or Civil Service Plan earned rating. The language does not require that the disability reach the ten per cent level required for compensation from the federal government. Since the federal government'certifies disablity in ten per cent increments for compensation purposes, aveteran who has a service-connected disability which does not reach the level of ten per cent would be certified for those purposes at zero, even though for other purposes he isrecognized as being, disabled. A service-connected disability rated'at iero‘per cent for compensation purposes which is,nonetheless, certified as a service-connected disability by official records, qualifies theveteran for the five point credit. Thus, neither theMerit System Council nor any other agency may limit the five point credit toveterans having disabilities rated at tenper cent ormore. SUMMARY Any service-connected disability established by official records entitles a person otherwise qualifying forpreference under article 4413(31), V.T.C.S., to an additional five point credit on his earned rating on a competitive Merit System or Civil Service Plan exam. Such credit may not be limited toveterans whose disabilities are rated at tenper cent or more by theVeterans Administration.

General of Texas

p.3601The Honorable Charles L. Morris -page 4 W-853)

Opinion Committee jwb

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