                             July 31, 1963



Major General Thomas S. Bishop       Opin ion No. C- 118
Adjutant General of Texas
Camp Mabry                           Re:     Application and Interpretation
Austin, Texas                                of Article 5769b-1, V.C.S. to
                                             Texas National Guardsmen who
                                             are also public officers or
                                             employees under the facts
Dear General Bishop:                         stated.

          You have requested an opinion concerning the application
and interpretation of Article 5769b-1, Vernon's Civil Statutes,
in certain specific instances where Texas National Guardsmen who
are public officers or employees are ordered to perform military
duties.

          Article 5769b-1   provides as follows:

          "Section 1. All officers and employees of
     the State of Texas and of any county or political
     subdivision thereof, including municipalities,
     who shall be members of the National Guard or Of-
     ficial Militia of Texas, or members of any of the
     Reserve Components of the Armed Forces shall be
     entitled to leave of absence from their respective
     duties without loss of time or efficiency rating
     or vacation time or salary on all days during which
     they shall be engaged in field or coast defense train-
     ing and on all days of parade or encampment, ordered
     or authorized by proper authority.  (Emphasis added.)

          "Sec. 2. All officers and employees of the
     State of Texas and of any county or political sub-
     division thereof, including municipalities who shall
     be members of the National Guard or Official Militia
     of Texas, or members of any of the Reserve Components
     of the Armed Forces, shall be entitled to leave of
     absence from their respective duties without loss of


                                 -586-
Major General Thomas S. Bishop, page 2 (C-   118   )



     time or efficiency rating or vacation time or salary
     on all days on which they shall be ordered by proper
     authority to duty with troops or field exercises, or
     for instruction, for not to exceed fifteen (15) days
     in any one calendar year.

          "Sec. 3.  Members of the National Guard or Of-
     ficial Militia of Texas, or members of any of the
     Reserve Components of the Armed Forces, who are in
     the employ of the State of Texas, who are ordered
     to duty by proper authority shall, when relieved
     from duty, be restored to the position held by them
     when ordered to duty.

           "Sec. 4. The provisions of this Act limiting
     such leaves of absence with pay to fifteen (15) days
     in any one calendar year shall not apply to Members
     of the Legislature; but Members of the Legislature
     shall be entitled to pay on all days, without limit-
     ations as to number thereof, when they may be absent
     from the Session of the Legislature and engaged as
     above provided. Acts 1953, 53rd Leg., p. 584, ch.
     227. '1

           From the outset, it must be bornein mind that the courts
of this State have consistently construed the Constitution and stat-
utes liberally in favor of patriotic service, and are loath to pen-
alize State employees who perform such services. The Legislature
has also often evidenced its spirit and intent to encourage such
military participation.   Therefore any construction of such statutes
which would deter or penalize such participation would not be in the
overall spirit of encouraging such commendable additional service to
this State. We would also point out that prior opinions of this of-
fice construing previous statutes of this nature repealed by the
present statute  have reflected this overall osition. See Attorney
General Opinions v-1062  (1950), v-1228 (1951P , and W-1477 (1962).
          Reading the statute as a whole, the Legislature provided
for two different types of SituatiOnS:  (1) special occasions of
State or periods of State emergency, and (2) Annual Active Duty for
Training (ANACDUTRA), generally referred to as "Summer Camp."

          It would obviously be impossible to estimate the number
of days that a State Employee-Guardsman would be ordered to perform
necessary additional service such as contemplated by Section 1. How -
ever, the period of absence contemplated by Section 2 is not indefinite;



                               -5R7-
Major General Thomas S. Bishop, page 3 (C- 118   )



fifteen calendar days is the established period of required service
in "Summer Camp."

          Therefore, we interpret Section 1 to authorize leaves
of absence on all days of special occasion such as parades, and
on all days of emergency, such as Hurricane Carla, without limita-
tion.

          Section 2 is interpreted to rovide for leaves of absence
for a period not to exceed fifteen (15P days per calendar year for
that training generally known as "Summer Camp" or Annual Active Duty
for Training (ANAcDuTRA). Section 4 removes any limitation as to
number of days for members of the Legislature when absent from a
legislative session.

          Having interpreted the statute In question, your specific
questions and the answers thereto are as follows:

         ' 1) Are the provisions of Section 1 of Arti-
    cle 57 Lgb-1 applicable to National Guardsmen ordered
    by proper authority to participate in an official
    parade or other formation?"

          Section 1 is applicable and there is no limitation as to
number of days.

          "(2) Are the provisions of Section 1, Article
     5769b-1 applicable to National Guardsmen ordered to
     perform disaster duty along the Texas coast immediately
     after Hurricane Carla (coastal defense training)?"

          Section 1 is applicable and there is no limitation as to
number of days.

          “(3)  Is Section 2 of Article 5769b-1, providing
     for fifteen days military leave each calendar year,
     applicable to members of the reserve components who
     are ordered to perform weekend duty with troops or
     field exercise or for instruction even though such
     persons do not work on Saturday or Sunday?"

          Section 2 is not applicable because it applies only to
"Summer Camp." Section 1 would be applicable and there is no limitation
as to number of days. We would also point out that by virtue of House
Bill 86, Acts of the 58th Legislature, Article 5, Section 6a, effective
August 23, 1963, all State employees except those whose employment is
generally referred to as "in the public interest" are not required to



                                -588-
Major General Thomas S. Bishop, page 4 (C- 1.18 )



work on Saturdays, hence after the above date the question would
not arise. However, as to those employees not affected by the pro-
visions of House Bill 86, Section 1 is still applicable so there
is no limit as to number of days.

          "(4) With reference to annual active duty
     for training (summer camp), do the provlsions of
     Section 2 of Article 5769b-1 mean fifteen consec-
     utive days, or fifteen calendar days, or fifteen
     working days?"

          Consistent with the intent of the Legislature, Section
2 applies as to “summer   camp" and "not to exceed fifteen (15) days”
means fifteen consecutive   calendar days. This would, of course,
prevent employees from being on leave of absence in order to be part
of the "advance party" and be absent in excess of fifteen consecutive
calendar days.

          The letter declaring your department's interpretation and
the able memorandum brief filed with this request by the Honorable
Wiley W. Stem, Jr., Waco City Attorney were of valuable assistance
to us, and we appreciate such excellent cooperation.

                          SUMMARY

          Article 5769b-1, Vernon's Civil Statutes, limits
     leaves of absence by State officers and employees who
     are members of the National Guard to fifteen (15) cal-
     endar days only as regards "Summer Camp"; leaves of
     absence for special State occasions, such as parades,
     and of public emergency, such as Hurricane Carla, have
     no such period of limitation, and such leave is authorized
     "on all days."

                                       Yours very truly,




                                       BY
                                       WAGGONER CARR
                                       Attorney General




                                            Assistant

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                               -589-
Major General Thomas S. Bishop, page 5 (C- 118   )



APPROVED:
OPINION COMMITTEE

W. V. Geppert, Chairman
Nicholas A. Irsfeld
Joseph Trimble
Jerry Brock

APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




                                -590-
