                      The Attorney              General of Texas
                                         December        13,    1979
MARK WHITE
Attorney General


                   Major General Willie L. Scott                  Opinion No. MW-10 0
                   TexARNG, The Adjutant General
                   P. 0. Box 5218                                 Re: Application of article 6813d,
                   Austin, Texas 78763                            V.T.C.S.,    to  state    employees
                                                                  returning after military service and
                                                                  to prior service of National Guard
                                                                  Technicians.

                   Dear General Scott:

                          You have requested our opinion whether periods of military service
                   which otherwise entitle an individual to rights afforded under article
                   6252-4a, section 3, V.T.C.S., and chapter 43 of Title 38 U.S.C. are also
                   applicable for longevity pay purposes under article 68134 V.T.C.S.

                           Earlier opinions of this office have held that persons reemployed are
                   entitled to longevity credit for pay purposes for the time spent in the
                   military.      Attorney General Opinions M-886 (1971); M-250 (1968). These
                   opinions were based upon a liberal interpretation   of article 6252-4a, section
                   3, which provides in part:

                                 Any person who is restored to a position . . . shall
                               be  considered as having been on furlough or leave of
                              absence . . . and shall be entitled to participation in
                              retirement or other benefits to which employees of
                              the State of Texas . . . are, or may be, entitled . . .

                   (Emphasis added).

                         Attorney General Opinion M-250 at 3, supra, was relied upon in M-886
                   (1971)and H-941 (1977), and stated in part that such a person:

                              . . . on returning from military leave prior to the
                              effective   date of Article 6252-4a, Vernon’s Civil
                              Statutes, is entitled to credit for pay purposes for the
                              time spent in military service. Such a procedural and
                              remedial statute is not only construed liberally but
                              may be applied retroactively.        53 Tex. Jur.2d 53,
                              Statutes, Sec. 29.




                                                    P.    311
Major General Willie L. Scott     -   Page Two       (Ml+100)



       Article 6813d, V.T.C.S., enacted by the 66th Legislature provides in section 1 that
each qualified employee “is entitled to longevity pay of a maximum of $4 per month for
each year of service as an employee of the state. . . .” within the time limitations set out
therein.

       AccorBngly, we conclude that the longevity pay benefits provided for in article
6813d, V.T.C.S., are applicable to those individuals entitled to the benefits provided for in
article 62524a, section 3, V.T.C.S. Chapter 43 of Title 38 U.S.C. does not affect the
provision of benefits under these state statutes and we therefore will not address it.

       Your second question inquires whether service as a National Guard Technician prior
to 1 January 1969 is creditable as “years of service as an employee of the state” for
purposes of longevity pay under article 68134 V.T.C.S. In this connection you refer to
article 6228a, section 4 I, V.T.C.S., and the case of Maryland v. United States, 381 U.S. 41
(1965).

      Article 6228a, section 4 I, V.T.C.S., provides:

               Prior to December 31, 1977, a member of the system with
            established creditable service as an officer or employee, exclusive
            of military credit, for no less than 12 of the 60 months immediately
            preceding the date of this amendment,          may establish service
            performed as a National Guard Technician with the Texas Adjutant
            General’s Department if such service was performed prior to
            January l, 1969, and is not otherwise creditable in any state or
            federal retirement      system.   Service shall be established     for
            retirement purposes upon payment in a lump sum of all applicable
            contributions,  interest, and fees.    All such amounts, and state
            matching funds therefor, shall be calculated in the manner and
            amounts provided in this Act for service not previously established

      Section 4, subsection I was added by Acts of the 65th Legislature with an effective
date of September l, 1977, and specifically provides that if an individual described therein
follows the procedure set out within the prescribed time limits, that person may qualify
for credit in the state retirement system for certain periods of employment as a National
Guard Technician.

      In the Maryland case, supre, the Supreme Court affirmed an appellate court opinion
that the federal government was not liable under the Federal Tort Claims Act for the
negligence of a National Guard officer and employee, because the negligent party was not
an “employee” of the United States, but an employee of the state.

       While the Maryland case is not directly in point regarding employment benefits such
as retirement or longevity, it clearly points out that, at the time of the decision, National
Guard personnel were to be regarded as employees of the state.              This status was
subsequently altered by Congress with the enactment of the National Guard Technicians
Act, 32 U.S.C., section 709, which classified these personnel as federal employees.




                                          P.   312
Major General Willie L. Scott      -   Page Three     (NW-100)



       Although article 6228a, section 4 I, V.T.C.S., pertains to eligibility    for the state
retirement    system for the described class of employees, and makes no          reference to
longevity pay benefits, it is remedial legislation which recognizes the nature    of this class
of individuals as state employees during their prior service as National Guard   Technicians

       It would be inconsistent with the required liberal construction of such statutes to
find that the remedial effects of article 6813d, section 1, V.T.C.S., regarding longevity
pay, should not apply to a described class of individuals recognized elsewhere by the
legislature for remedial purposes. We accordingly conclude that the remedial effects of
article 6813d, section (l), V.T.C.S., apply to the qualified National Guard Technicians
described in article 6228a, section 4 I, V.T.C.S.

                                        SUMMARY

           The longevity pay benefits provided for in article 6813d, V.T.C.S.,
           are applicable to those individuals entitled to the benefits provided
           for in article 625‘&4a, section 3, V.T.C.S. Years of service as a
           National Guard Technician prior to January 1,1969, are creditable
           as years of service as an employee of the state for purposes of
           longevity pay, as esteblished by article 6813d, V.T.C.S.

                                                Very truly yours,   /7


                                                MARK     WHtTE
                                                Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Bob Gammage
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Bob Gammage
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
Lonny Zwiener




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