DAN MORALES

.ATTORSEY Gt’SHkAl. 

# QBffice

oftoe 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 paybcgiosalterfiveyearsufrcni#. Tba amountpsid imrcams“when the lOth, 15th. ZOlh, and 2% yearsof 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 hazardousduly 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 appearto k.

?SccUon659.063 was addedby 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, Q5.15,1995 TCX. SCSS. Law WV. 458,478. Wereferhowever 10 the section

as addedhychapter262 of rbc session

laws,which wasadopted

laterin time. In section

90 Ihereof,

chsprcr262.unlikechapter76, also smcndcd

section 262&52(a),

addingthe proviso regarding sccdon 659.063@)(l) quoted klow in lheMr. 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‘GeneralAppropriations An” in chapter262’s

versionof section 653.063(b)(l) is not included in the version of the section addedby 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. 2045Mr. 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 putposesso long as he does not actuatly receive hazardousduty 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 bazarduu6duty 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 basedon 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 hazardousduty employee tmnsfem to rmhmdcm position and stops mceiving hamrdous duty pay. he is then ~mtitkd to longevity pay for each year of service including theyars of sewice in a position for which the 

### l mploye was entitled to hmmdas duty pay”) (emphasis added).

swe note that you indicate that someof 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. 2046Mr. 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-“hazardousdutypay is instead o/other hamdow duty or longevity pay”-indicator that one is not eligible to receivehazardousduty pay unless he had been eligible to receivelongevitypay. The lengevity psypmvisiomexpressly

condition eligibility IO receive lonrpvitypay(asdistincrfromeligibility to swrue acrviwtime for longwily pay pmpse6) on one’sbeing a full-rimeemployee. Gov? Cods #§659.043. ,046. See Anomcy Gaual Opinion Jhf-407 0985) (distinguishing eligibility to accrue la~gevityscrvimrims from eligibilityto roxiw longwiry psy). We do not bclim that sn ordinary tmding ofthe language

in which “instead

of’ is usedreasonably

pennits infcning a requirement hatone have been eligible for longevitypay in orderto receivehazardous duty pay. MOIWJW,

even if t&e provisionswere ambiguous,it is a 3~41 settled” canon of conmuction thatthey shouldbe construed in Thorof thepublicemployee Id.
Pleasenote,however,

thatas youdo notask,WC do notaddress

how bazardwrdutypayamounts due a part-tiou or body employeeare to be cakxlated. See, e.g., Attorney GeneralOpinion H44 (1975) (sickleavebcnetitsofpart-time andhourlyemployees).

P. 2047