                              February    18, 1975


The Honorable Everett L. Anschutz                   Opinion No. H-     531
Executive Secretary
Employees Retirement System of                      Re: Employees Retirement
  Texas                                             System computation of credit
Box 12337, Capitol StatiDn                          for military service.
Austin, Texas    78711

Dear Mr.   Anschute:

        You have requested our opinion concerning the construction of
article 6228a, section 4-G, V. T. C. S., insofar as it allows retirement
credit to be granted for “full months in actual service” in the military.

       Article   622ga,   section 4-G,   provides   in pertinent   part:

                 Any.person applying for credit authorized by
                 this subsection, shall pay to the Employees
                 Retirement System a sum equal to the number
                 of full months in actual service. . . . (Emphasis
                 added).

        The word “full” was added by Acts 1973, 63rd Leg., ch. 394, p. 871.
You state in your request that prior to this amendment you construed
“month” to mean “calendar month” as required by article 23(15), V. T. C, S,
You state that you:

                 . . * used the spare days in the calendar months at
                 the beginning and end of a member’s     military ser-
                 vice . . . [and] if the spare days totaled 30 or more
                 [you] counted an extra ‘so called’ calendar month,
                 [thereby creating] a calendar month for administra-
                 tive purposes.




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         The Honorable   Everett   L. Anschutz     page 2   (H-531)




         However,   upon the addition of the word “full” to article 6228a, section 4,
         you have ceased giving credit for partial months which total 30 days,
          construing “full” to require complete months as they appear on the
         calendar.

                  It is well established that the word “month” is to be construed as
         “calendar month. ” V. T. C. S. art. 23(15); Gardner v. Universal Life &
         Accident Ins. Co. , 164 S. W. 2d 582 (Tex. Civ. App. --Dallas 1942, writ
         dism’d);Attorney    General Opinion O-1492 (1939). However,      “calendar ’
         month” is subject to two different constructions.     It may be construed as
         complete months as they appear on the calendar: for example, under
         this construction there is one calendar month in a period from September
         4 to November 4 (viz. October).       It may also be construed as a period
         from a given day in one month to a day of the corresponding       number in
         the next month. A period from September 4 to November 4 would thereby
         include two calendar months.      86 C. J. S. Time $10.

                 It is apparent that you have construed calendar month to mean
         complete months as they appear on the calendar.         There is some authority
         for this construction.   See Ex Parte Neisler,     69 S. W. 2d 422 (Tex. Grim.
         App. 1934): Chrvsler Corporation v. Delaware, 163 A. 2d 239 (Del. 1960).
         The great weight of authority, however. construes “calendar months” other-
         wise. Gardner v. Universal Life & Accident Ins. Co., supra; Attorney
         General Opinion O-1492 (1939); Fogel v. Commissioner           of Internal Revenue,
         203 F. 2d 347 (5th Cir. 1953); Krajniak v. Wilson, 249 A. 2d 249 (Conn. 1968) ;
         Brown v. City of Omaha, I,37 N. W. 2d 814 (Neb. 1965); Odom v. Odom, 130
         So. 2d 10 (Ala.1961); Parseghian v. Parseghian,      178 S. W. 2d 49 (,Ark. 1944);
         Minard V. Burtis, 53 N. W. 509 (Wis.1892); c.f. Siebert v. Sally, 238 S. W.
          2d 266 (Tex. Civ. App. --Galveston    1951, noTit);    Price v. Wood, 88 S. W.
          2d 530 (Tex. Civ. App. --Beaumont 1935 , no writ).

                 “Calendar month” is defined in these cases as a period of time
         “from a given day in one month to a day of the corresponding  number in
         the next or specified succeeding month. ” Gardner v. Universa,l Life &
         Accident, supra at 583. If the specified succeeding month contains no
         day of the corresponding  number, a calendar month ends on the last day
         of that month. Odom v. Odom, *,         (e.g. August 31, 1974 to April 30,
         1974 is seven calendar months).




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The Honorable   Everett   L. Anschutz     page 3   (H-531)




         Generally, a calendar month is not completed until the correspond-
ing day in the next month. However,      we are aware that military   service
is usually completed on the day preceding the day numerically      correspond-
ing to the starting day. Whether the first and last days of a period should
be counted depends on the facts of the particular case, for courts will
adopt the construction that will uphold bona fide claims.   Hazlewood v.
Rol(an, 67 S. W. 80 (Tex. Sup. 1902); Hill v. Kerr, 14 S.W. 566 (Tex. Sup.
1896); Watkins v. P. J. Willis & Bro., 58 Tex. 521 (1883); O’Connor v.
 Towns, 1 Tex. 107 (1846); Eyl v. State, 84 S. W. 607 (Tex. Civ. App.
1904~; writ ref.).  55 Tex. Jur. 2d Time 5 8. Statutes   involving a question
of first and last days of a period should be given “such a construction . . .
as would operate most to the ease of parties entitled to favor, and by
which rights would be recured . . . . ‘I O’Connor v. Towns, supra at 114.

         In Attorney    General Opinion H-348 (1974), we noted that statutes
providing retirement benefits are to be liberally construed so as to
secure the benefits &tende&         53 Tex. Jur. 2d Statutes  5157. --
                                                                     See Woods
v. Reilly, 218 S. W. 2d 437 (Tex. Sup. 1949); Teacher Retirement System
v.~ Duckworth,      260 S. W. 2d 632 (Tex. Civ. App. --Ft. Worth 1953),
opinion adopted 264 S. W. 2d 98 (Tex. Sup. 1954). In addition, the cases
interpreting    “calendar months ” have dealt with procedural time limita-
tions and contract clauses.       We feel that an evaluation of the duration of
military service involves a quite different situation, one where the first
day of service should be considered as a complete day. In conjunction
with the state’s public policy concerning beneficial statutes, these
circumstances       compel a modification  of the general rule. Accordingly,
it is our opinion that in the context of military service a calendar month
is a period of time from the starting day to the day preceding the numerically
corresponding      day in the next month.

         The addition of the word “full” to article 6228a, section 4, compels
no different conclusion.    The amendment’s bill analysis which was before
the Legislature   expresses no such purpose.      Senate Bill 899 (1973) (Bill
Analysis).   In our opinion, the word “full” was intended to expressly      exclude
partial calendar months from the operation of section 4. For example, an
employee who served in the military from August 15, 1958 until October 13,
1960, may pay the system for 25 calendar months of service,         but not for
25 and 29130 months.




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The Honorable   Everett   L.Anschutz      page 4   (H-531)




                                  SUMMARY

                     “Full months” as used in article 6228a,
                V. T. C. S., means full calendar months. The
                number of full calendar months included in a
                period of military service is the number of
                monthly segments from the starting date to
                the last day of the period which directly pre-
                cedes a date numeridally   corresponding  to
                the starting date.

                                                   Very truly yourrr,




                                                   Attorney   General   of.Texas




DAVID M. KENDALL,         First   Assistant




Opinion Committee




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