                             QBffice of tly !Wmtep                65eneral
                                          atate     of ‘Qexae
DAN MORALES
 ATTORNEY
       GENERAL                              November 6,1996




   Mr. Don Gilbert                                   Opinion No. DM 422
   Commissioner
   Texas Department of Mental Health                 Re: Applicability of Senate Bill 646, Act of
    and Mental Retardation                           May 27, 1995, 74th Leg., RS., ch. 854, 1995
   P.O. Box 12668                                    Tex. Gen. Laws 4287, 4288, which relates to
   Austin, Texas 7871 l-2668                         veterans’ employment preference (RQ-856)

   Dear Commissioner Gilbert:

           You ask what preference a state employee who is a veteran has, pursuant to section 657.007
   of the Government Code, in the event of a reduction in force (“RF’) in the employing agency.
   Specifically, you seek to know whether such an employee has an absolute preference over other
   employees in a RIP, or whether his or her veteran status is to be considered only when choosing
   between or among otherwise similarly qualified employees.

           Section 657.007 of the Government Code was added as part of Senate Bill 646, Act of
   May 27,1995,74th Leg., RS., ch. 854, 1995 Tex. Gen. Laws 4287,4288. The general purpose of
   Senate Bill 646, according to the bii analysis, was to require “public entities and the Texas Veterans
   Commission to file a report stating the percentage of employees hired by the entity who are entitled
   to veterans’ employment preferences.” House Comm. on State Affairs, Bill Analysis, S.B. 646, 74th
   Leg. (1995).

           Section 657.007, with which you are particularly concerned, provides as follows:

                  (a) An individual entitled to a hiring preference under this chapter is
              also entitled to a preference in retaining employment if the public entity that
              employs the individual reduces its workforce.

                  (b) The preference granted under this section applies on& to ihe extent
              ihai a reduction in woryorce by an employing public entity involves other
              employees of a similar we or classifiaiion. pmphasis added.]

           In our view, the language emphasized above makes plain that the preference established by
     section 657.007 is by no means an absolute one. This view moreover is reinforced by reading this
Mr. Don Gilbert - Page 2                       (DM 422)




 section in pari materia with section 657.003(a) of the Government Code, which defines the
 reference in employment as follows:

              An individual who qualifies for a veteran’s employment preference is
            entitled to a preference . over other applications for the same position
            who do not have a greater qualQicaiion.

       There is no reason to assume that the preference available for retention purposes is greater
 than that for hiring purposes. Nothing in the language or legislative history of section 657.007
 indicates an intent to modify the nature of the preference. Accordingly, the preference is to be
 taken into consideration when selecting among similarly qualified and similarly situated
 employees, and does not require the retention of a veteran in place of a more qualified employee
 who is not a veteran.

                                       SUMMARY

                  The preference for veterans in a reduction workforce mandated by
            section 657.007 ofthe Government Code is not absolute. Veterans are to
            be preferred when selection among similarly qualified and similarly situated
            employees, but are not entitled preference over more qualified employees
            who are not veterans.




                                                       DAN MORALES
                                                       Attorney General of Texas

 JORGE VEGA
 First Assistant Attorney General

 SARAH J. SHIRLEY
 Chair, Gpiion Committee

 Prepared by James E. Tomtelott
 Assistant Attorney General




                                               p. 2356
