DAN MORALES 

.ATTORSEY Gt’SHkAl. 

QBffice of toe Bttornep 63eneral 

&ate of PGexae 

February 6, 1996 

Mr. Steve Robinson 

Executive Director 

Texas Youth Commission 

P.O. Box 4260 

Austin, Texas 78765 

Opinion No. DM-376 

Re: Whether a Texas Youth Commission 

employee in a hazardous duty position but 

not receiving hazardous duty pay accrues 

service credits for purposes of longevity 

pay (RQ-746) 

Dear Mr. Robinson: 

You ask whether under the hazardous duty pay provisions of chapter 659, 

subchapter E, Government Code, “tiic in service continues to accrue for longevity pay 

purposes during the first year of a Texas Youth Commission employee’s service in a 

hazardous duty position.” 

Subchapter D of chapter 659, Government Code, provides generally for longevity 

pay. A !U-time state employee is generally entitled to receive ‘longevity pay,” of four 

dollars for each ‘year of “life-time service credit.” starting after five years of service.t 

Chapter 659, subchapter E, section 659.062, although not embracing Texas Youth 

Commission (“TYC”) employees, provides that certain state law enforcement and security 

personnel are “entitled to hazardous duty pay of S7 a month for each year of service” in a 

hazardous duty position. The succeeding provisions, in section 659.063, specifically 

provide that TYC employees having routine direct contact with youth in commission 

facilities or under commission supervision “may receive’hazardous duty pay* in an amount 

that does not exceed the amount” authorized by section 659.062, subject to the conditions 

and limitations in the General Appropriations Act. 3 Section 659.062(a), however, adds 

%pant of long&y pay bcgios alter five years uf rcni#. Tba amount psid imrcams “when 

the lOth, 15th. ZOlh, and 2% years of l&time service c&it arc accrued.” Gov? Code 5 659.044. 

*We note Ihat, even though “eligible” to receive hamdou duty pay under &on 659.062. TYC 

employws pcrforming hazardous duly arc nol, by virtue of the use of “may” and the wndilioning of their 

receipt of such pay on limitations in the General Appropriations A*. ‘cn~iUcd” IO it as Ux c&r personnel 

designated in the section appear to k. 

?SccUon 659.063 was added by Iwo scpmte bills in 1995. Acl of h&y 27, 1995,74th Leg., RS., 

ch. 262, 0 91, 1995 Tex. Ms. Law Serv. 2Sl7. 2586; Act of Apr. 25, 1995, 74th Leg., RS.. ch. 76, 

Q 5.15,1995 TCX. SCSS. Law WV. 458,478. We refer however 10 the section as added hy chapter 262 of 

rbc session laws, which was adopted later in time. In section 90 Ihereof, chsprcr 262. unlike chapter 76, 

also smcndcd section 262&52(a), adding the proviso regarding sccdon 659.063@)(l) quoted klow in lhe 
Mr. Steve Robinson - Page 2 (DM-376) 

the proviso that “[elxcept as provided by Subsection (c) or Section 659.063(b)(l), this 

hazardous duty pay is instead of. longevity pay.” 

Subsection (c) of section 659.062 provides: 

A state employee who has received longevity pay under 

Subchapter D for service in a position that does not require the 

performance of hazardous duty and who transfers to a position for 

which the employee is eligible to receive hazardous duty pay is 

entitled to continue to receive longevity pay for the years of service 

to the state performed in the prior position. The employee is not 

entitled to additional longevity pay for the period in which the 

employee receives hazardous duty pay, but that period is included in 

computing the employee’s total years of service as an employee of 

the state. Footnote omitted; emphasis added.] 

The other referenced provision in the section 659.062(a) proviso is subsection 

(b)(l) of section 659.063, which provides that hazardous duty pay under section 659.063 

is subject to the conditions and limitations in the General 

Appropriations Act, except that during periods when Texas Youth 

Commission employees do not receive the full, amount of the 

hazardous duty pay for which they are eligible, they are entitled to 

receive longevity pay for the time accrued in a hazardous duty 

position, but only until hazardous duty payments resume. 

Attorney General Opinion TM-548 (1986) concluded that, under the 

“unambiguous” language now in section 659.062(a)-“entitled to hazardous duty pay of 

S7 a month for each year of service”-an employee is not entitled to start receiving 

hazardous duty pay until &er a year of service in a hazardous duty position. Your 

concern, again, is whether, during the first year in a hazardous duty position, when he is 

not yet eligible to receive hazardous duty pay, a commission employee accrues “lifetime 

service credit” for longevity pay purposes. In our opinion, such employee continues to 

accrue “lifetime service credit” for longevity pay purposes during his first year of 

hazardous duty service. The language of subsection (c), section 659.062, quoted above, 

indicates only that the accrual of service credit for longevity pay purposes stops “for the 

period in which the employee receives hszardous duty pay.” (Emphasis added.) Siilarly, 

the proviso in subsection (a) that “[elxcept as provided by Subsection (c) or Section 

659.063(b)(I,), this hazardous duty pay is instead of. longevity pay” limits only 

longevity pcry, not the accrual of “lifetime setvice credit” for longevity pay purposes4 

(footnote continued) 

text. The Isnguage afrer ‘General Appropriations An” in chapter 262’s version of section 653.063(b)(l) 

is not included in the version of the section added by chapter 76. 

‘The provision of subsection (b)(I) of salion 659.063 for the ruxipl of longevity pay by 

commission anployces who “do not fcceive the full amount of hazardous duty pair for which they are 

p. 2045 
Mr. Steve Robinson - Page 3 (DM-376) 

Therefore, in our opinion, as he is not actually “receiving” hazardous duty pay during his 

first year of service in a hazardous duty position, the employee continues to accrue 

“lifetime service credit” under the longevity provisions of subchapter D during that period. 

See id. $4 659.044 (entitlement to receive four dollars longevity pay “for each year of 

lifetime service credit” beginning after five years of service), 46 (“employee accrues 

lifetime service credit for the period in which the employee.. ‘. serves as a. state 

employee”).s 

You also ask “‘whether part-time and hourly [nC] employeesd who work in 

hazardous duty positions are eligible to receive hazardous duty pay under” the provisions 

of sections 659.062 and 659.963. The provisions of sections 659.062 and 659.063 refer 

to “an eligible employee,” “an employee of the state,” “employees. . . eligible for 

hazardous duty pay,” and “an employee of the Texas Youth Commission.” Nowhere do 

these provisions limit the covered class of employees to full-time employees. ‘Where the 

legislature makes no exception to the provisions of a statute, the presumption is that it 

intended no exceptions.” Attorney General Opinion JM-407 (1985) (eligibility of parttime employees to accrue service credit for longevity pay purposes under predecessor 

provisions of subchapter D). We conclude that subject to the other conditions of section 

659.062, including the amendatory provisions specific to TYC employees, part-time and 

(foutnote conthtued) 

digible”doesnotkaronthetimepcriodyouarkibout-thcf~yearofhazardour duty seNice-whm 

the employee is not yet digiblc to rcceivc harardous duty pay. 

sPkam note, however, that although tmdcr the conchtsion we reach hem. an employee 

fmns12~ing to a hamduus duty position is cntitkd to continue accruing lifettme service cmdits for 

longwily pay putposes so long as he does not actuatly receive hazardous duty pay, under s§ion (c) of 

awtion 659.062 Ume liiaime szvice modit6 would not be inchxled in determining the amotmt of 

kmgevify pay which he would be entttkd to recetve while in a ham&us duty position such pay under 

adcctioa (c) being “for the years of setvice to the state pcrformcd in the prior posttion.” (Emphasis 

addat.) However, tmdcr mbstion @XI) of section 659.063, which is spccitic to NC employees, such 

empluyw3 arc mtitkd to receive long&y pay for time accrued in a bamtdom duty position while not 

actually mwiving full bazarduu6 duty pay “for which they am eligible.” Although such employees would 

WI k eligible tmdcr the pmvision to mceive such longevity pay during their fimt year in a ham&us duty 

p&ion, wbm tky arc MI eligible to actnally raotvc hazardous duty pay, they may, once eligible 

tbarafor but not scmally rccciving full baardws duty pay. taceive longevity pay based on their ham&us 

duty acrvicc inchtding amomtts attributable to the first year of such service when they are not actually 

mceiving hazardws duty pay. See also Gov’t Code g 659.062(d) (tf hazardous duty employee tmnsfem to 

rmhmdcm position and stops mceiving hamrdous duty pay. he is then ~mtitkd to longevity pay for 

each year of service including the yars of sewice in a position for which the l mploye was entitled to 

hmmdas duty pay”) (emphasis added). 

swe note that you indicate that some of the “employees” in question are “stand-by.” We camtot 

tesulvc Uu fact questions which would be involved in dctcrmining whether “standby” employees arc in 

fact employees within the, pmnmtably ordinary, meaning of the term as used in section 659.062. For 

porpoms of this opinion, we take at face value your charactartzation of the individuals you ash about as 

“emplnyws.” 

p. 2046 
Mr. Steve Robinson - Page 4 (DM-376) 

hourly, as well as full-time, TYC employees in hazardous duty positions are eligible to 

receive hazardous duty pay.7 

SUMMARY 

A Texas Youth Commission employee holding a hazardous duty 

position is not eligible to receive hazardous duty pay during his first 

year in a hazardous duty position. Such employee continues to 

accrue “lifetime service credit” for longevity pay purposes during the 

frrst year in a hazardous duty position. Subject to the other 

w&ions of Government Code sections 659.962 and 659.963, parttime and hourly, as well as full-time, Texas Youth Commission 

employees in hazardous duty positions are eligible to receive 

hazardous duty pay. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH I. SHIRLEY 

Chair, Opiion Committee 

Prepared by William Walker 

Assistant Attorney General 

We tudmlmd it has been argued that the language of s§ion (a) of acction 

659.062-“hazardous duty pay is instead o/other hamdow duty or longevity pay”-indicator that one is 

not eligible to receive hazardous duty pay unless he had been eligible to receive longevity pay. The 

lengevity psy pmvisiom expressly condition eligibility IO receive lonrpvity pay (as distincr from eligibility 

to swrue acrviw time for longwily pay pmpse6) on one’s being a full-rime employee. Gov? Cods 

#§659.043. ,046. See Anomcy Gaual Opinion Jhf-407 0985) (distinguishing eligibility to accrue 

la~gevity scrvim rims from eligibility to roxiw longwiry psy). We do not bclim that sn ordinary 

tmding of the language in which “instead of’ is used reasonably pennits infcning a requirementhat one 

have been eligible for longevity pay in order to receive hazardous duty pay. MOIWJW, even if t&e 

provisions were ambiguous, it is a 3~41 settled” canon of conmuction that they should be construed in 

Thor of the public employee Id. 

Please note, however, that as you do not ask, WC do not address how bazardwr duty pay amounts 

due a part-tiou or body employee are to be cakxlated. See, e.g., Attorney General Opinion H44 

(1975) (sick leave bcnetits of part-time and hourly employees). 

P. 2047