                            Aus-rxzs   PIL. TEXAS
  FVIlLL  WILSON
ATI-0RNEY    GENERAL
                             October 18, 1962


     Mr. Charles L. Morris
     Executive Director
     Veterans Affairs Commission
     Austin, Texas
                                 Opinion No. WW-1453
                                 Re : Whether certain State employees
                                      will be eligible to be restored
                                      to state employment under Arti-
                                      cle 6252-4, Vernon's Civil Stat-
      Dear Mr. Morris:                utes, under stated facts.
                From your letter requesting an opinion from this of-
      fice, we quote as follows:
                 “We desire the opinion of your office concern-
            ing re-employment rights for State employees after
            serving with the Armed Forces, as enacted in Arti-
            cle 6252-4, Vernon's Civil Statutes.
                 "This office has had inquiries from State agen-
            cies concerning State employees who were called into
            active duty with the 49th Armored Division in 1961,
            and were to have been released with other members of
            the 49th Division in August, 1962. Certain State
            employees have requested, and have been ordered to
            another year of active duty.
                 l'Youropinion is requested as to whether these
            certain State employees will be eligible for restora-
            tion of State employment after being released from
            this subsequent period of service.
                 "Your opinion is necessary due to the fact that
            State agencies need a clarification of this Statute,
            concerning re-employment of State employees when
            they are eventually released from the Armed Forces,
            so that employment of personnel and other personnel
            practices can be planned in accordance with your
            construction of this Statute."
Mr. Charles L. Morris, page 2   ww-1453)


          In 1961~~with the nation concerned with the crisis
over Berlin, the President declared that there existed a state
of national emergency, and requested Congress to grant him the
power to order to active federal duty certain units and members
of the 'Ready Reserve.'
          Congress responded to the President's request by pass-
ing a Joint Resolution which authorized the President to order
units and members in the Ready Reserve to active federal mili-
tary duty for a period of not more than twelve months. Also,
this Resolution provided that the President, prior to the expi-
ration of the initial period, could authorize the Secretary of
Defense to extend the military status of such units and members
for an additional twelve month period.
          This Joint Resolution of Congress reads as follows:

                 "ARMED FORCES-READY RESERVE
              PUBLIC LAW 87-117: 75 STAT. 24?
                      (S.J. Res. 120)
     "Joint Resolution to authorize the President
     to order units and members in the Ready Reserve
     to active duty for not more than twelve months,
     and for other purposes.
     "Resolved by the Senate and House of Representa-
     tives of the United States of America in Congress
     assembled, That:
          "Notwithstanding any other provision of law,
     until July 1, 1962, the President may, without
     the consent of the persons concerned, order any
     unit, and any member not assigned to a unit organ-
     ized to serve as a unit, in the Ready Reserve of
     an armed force to active duty for not more than
     twelve consecutive months. However, not more than
     two hundred and fifty thousand members of the Ready
     Reserve may be on active duty (other than for
     training), without their consent, under this sec-
     tion at any one time.
          Vet. 2. Notwithstanding any other provision
     of law, until July 1, 1962, the President may au-
     thorize the Secretary of Defense to extend enlist-
     ments, appointments, periods of active duty,
     periods of active duty for training, periods of
     obligated service, or other military status, in
Mr. Charles L. Morris, page 3   (~~-14.53)


    any component of an armed force or in the Na-
    tional Guard that expire before July 1, 1962,
    for not more than twelve months.
          "Approved August 1, 1961."
          Pursuant to this Resolution and pre-existing statutory
authorization, the President issued the following executive or-
ders:
                      "EXECUTIVE ORDERS
                         NO. 10957
               August 15, 1961, 26 F.R. 7541
    "ASSIGNING AUTHORITY WITH RESPECT TO ORDERING
    PERSONS AND UNITS IN THE READY RESERVE TO
    ACTIVE DUTY AND WITH RESPECT TO THE EXTENTION
    OF ENLISTMENTS AND OTHER PERIODS OF SERVICE IN
    THE ARMED FORCES
          "By virtue of the authority vested in me by
     the Joint Resolution of August 1, 1961 (P.L. 87-
     117), and by section 301 of title 3 of the United
     States Code and as President of the United States,
     it is hereby ordered as follows:
         "Section 1. The Secretary of Defense, and,
    when designated by him for the purpose, any of
    the Secretaries of the military departments of the
    Department of Defense, are hereby authorized and
    empowered to exercise the authority vested in the
    President until July 1 1962, by section 1 of the
    Act of August 1, 1961 tPublic Ian 87-117) to order
    without the consent of the persons concerned, any
    unit, and any member not assigned to a unit organ-
    ized to serve as a unit, in the Ready Reserve of
    an armed force to active duty for not more than 12
    consecutive months, provided there are not more
    than 250,000 members of the Ready Reserve thereby
    on active duty (other than for training) without
    their consent at any one ,time. However, the Sec-
    retary of Defense may not order any unit in the
    Ready Reserve of an armed force to active duty,
    other than active duty for training under this sec-
    tion without the approval of the President.
          "Section 2. In pursuance of the provisions
     of section 2 of the said Joint Resolution of August
Mr. Charles L. Morris, page 4   (W-1453)


    1, 1961, the Secretary of Defense is hereby au-
    thorized to extend enlistments, appointments,
    periods of active duty, periods of active duty
    for training, periods of obligated service, or
    other military status, in any component of an
    armed force or in the National Guard that ex-
    pire before July 1, 1962, for not more than
    twelve months.
                      JOHN F. KENNEDY
     THE WHITE HOUSE
       August 10, 19bP
          In accordance with these executive orders, the Secre-
tary of Defense in the fall of 1961, ordered the 49th Armored
Division to active federal duty.   ,
          Section 1 of Article 6252-4 reads as follows:
         "Sec. 1. Any employee of the State of
    Texas, other than a temporary employee, an
    elected official or one serving under an appoint-
    ment which requires confirmation by the Senate,
    who leaves his position in time of war or during
    the national emergency and enters the military,
    air or naval forces of the United States or other
    active Federal military duty or service by reason
    of induction into the armed forces of the United
    States or in compliance with orders to active
    Federal military duty, or enters service as a
    member of the Texas National Guard or Texas State
    Guard or as a member of any of the reserve compo-
    nents of the Armed Forces of the United States
    shall, if discharged, separated or released from
    such active military service under honorable con-
    ditions, be restored to employment in the same
    department, office, commission, board or other
    agency of the State constituting employment by
    the State of Texas, and to the same position
    held at the time of induction or order to active
    Federal or State military duty or service, or t0
    a position of like seniority, status and pay if
    still physically and mentally qualified to per-
    form the duties of such position."
          There are no provisions in this Section which limit or
otherwise specify the period of time a State employee is author-
ized to serve on active federal duty in order to be entitled
upon honorable release to restoration of State employment. It
Hr. Charles L. Morris, page 5      (w-1453)


is our opinion that once a State employee, in time of national
emergency, complies with an order to active federal military
duty, the period of service is immaterial to the right of res-
toration of State employment. We are of the opinion that such
right vests at the time such individual is discharged, separ-
ated or released from active federal service under honorable
conditions.
          On the basis of the clear and unambiguous language of
this Section, you are advised that those State employees, other
than a temporary employee, an elected official, or one serving
under an appointment which requires confirmation by the Senate,
who leave their positions in time of national emergency in com-
pliance with an order to active federal service in the Armed
Forces of the United States, are entitled, upon release under
honorable conditions from active duty, to restoration of State
employment in the same position held at the time of the order
to active federal duty, or to a position of like seniority,
status and pay if still physically and mentally qualified to
perform the duties of such positions.

                             SUMMARY

             Certain State employees are entitled to restora-
        tion of State employment, upon release from active
        federal military duty.
                                 Sincerely yours,
                                 WILL WILSON
                                 Attorney General of Texas




IRW   :mkh   :wb                       Assistant
APPROVED:
OPINION COMMITTEE
Howard Mays, Chairman
Marvin Thomas
Arthur Sandlin
Malcolm Quick
REVIEWED FOR THE ATTORNEY GENERAL
BY:      Leonard Passmore
