                               QBffice
                                    oftoeBttornep
                                                63eneral
                                              &ate of PGexae
DAN MORALES
 .ATTORSEY
       Gt’SHkAl.                                 February 6, 1996

       Mr. Steve Robinson                                   Opinion No. DM-376
       Executive Director
       Texas Youth Commission                               Re: Whether a Texas Youth           Commission
       P.O. Box 4260                                        employee in a hazardous duty        position but
       Austin, Texas 78765                                  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 bcgiosalter 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.

                ?SccUon659.063 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 however10the sectionas added hy chapter262 of
       rbc sessionlaws, which was adoptedlater in time. In section90 Ihereof,chsprcr262. unlike chapter 76,
       also smcndcdsection262&52(a),addingthe 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 Isnguageafrer ‘General AppropriationsAn” in chapter262’sversionof 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


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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 part-
time 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&section (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   arcmtitkdto 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
                                              (DM-376)
Mr. Steve Robinson - Page 4




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, part-
           time 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&section (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 hazardousduty pay unless he had been eligible to receive longevity pay. The
lengevitypsy pmvisiom expresslyconditioneligibilityIOreceivelonrpvitypay (as distincrfrom eligibility
to swrue acrviw time for longwily pay pmpse6) on one’s being a full-rimeemployee. Gov? Cods
#§659.043. ,046. See Anomcy Gaual Opinion Jhf-407 0985) (distinguishingeligibility to accrue
la~gevity scrvim rims from eligibility to roxiw longwiry psy). We do not bclim that sn ordinary
tmding of the languagein which “insteadof’ is used reasonablypennits infcning a requirementthat one
have been eligible for longevity pay in order to receive hazardousduty pay. MOIWJW,even if t&e
provisionswere ambiguous,it is a 3~41 settled”canon of conmuction that they should be construedin
Thor of the public employee Id.

         Please note, however,that as you do not ask, WCdo not addresshow bazardwr duty pay amounts
due a part-tiou or body employee are to be cakxlated. See, e.g., AttorneyGeneral Opinion H44
(1975) (sick leavebcnetitsof part-timeand hourlyemployees).



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