    _   ‘.       ,.*

.            :




                                THE      ATTBRNEY            GENERAL
                                            OF    TEXAS




                                                 June 18. 1971


                       Honorable Ward P. Casey                   Opinion No. M-886
                       County Attorney
                       Ellis County Courthouse                   Re: Whether under Article
                       Waxahachie, Texas                             6252-4a, V.C.S., a city
                                                                     fireman, upon returning
                                                                     from military leave, is
                                                                     entitled to credit for
                                                                     pay purposes for that
                                                                     time he served in
                                                                    military   service?
                       Dear Mr. Casey:

                            In your letter requesting an opinion    from   this office, you
                       submit the following facts:

                                 "On October 16, 1967, the fireman insquestion was
                            employed and commenced working for the City of Waxahachie
                            as a fireman. He worked continually from the date of
                            his employment until March 22, 1968, when he entered
                            the Armed Forces of the United States. After serving
                            three years in the military service, and aftex.,being
                            honorably discharged therefrom, he applied and went back
                            to work as a fireman for the City on April 1, 1971, where
                            he worked continuously to this date.

                                 "Although the City has no published rules, policies,
                            or ordinances covering the pay scales of firemen and
                            policemen, all firemen who have been employed by the
                            City more than one year are receiving the same salary,
                            with the exception of lieutenants and captains.

                                 "The fireman in question, upon rejoining the department
                            anticipated he would be paid the same salary as other
                            firemen who had more than a year's service.



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HonorableiWard P. Casey, page 2       (M-886)

         "The City was of a contrary opinion and refused to
    grant him credit for pay purposes for time spent in the
    military service. The City contends that Article 6252-4a,
    V.C.S., provides for credit for time spent in the military
    service only as to participation in retirement benefits.

         "It is our contention that Article 6252-4a is designed
    to broaden the coverage to municipal employees not
    previously covered under Sec. 22a Article 1269m, and that
    a City which has not adopted the Firemen's and Policemen's
    Civil Service Act is no longer exempt from granting a
    municipal employee credit for pay purposes for time epent
    in the military service."

    With regard to these facts, you ask the following question:

         "'UnderArticle 6252-4a, Vernon's Civil Statutes,
    is a city fireman, on returning from military leave,
    entitled to credit for pay purposes for the time spent in
    military service?"

     your authority to receive an opinion under Article 4399*
is found in Section 5 of Article 625214a.

    Article 6252-4a, Section 3, provides as follows:

         "Sec. 3. Any person who is restored to a,position
    in accordance herewith shall be considered as having been
    on furlough or leave of absence during such abeence in
    Federal or State military service,'~
                                       and shall be entitled
    to participation in retirement or other benefits to
    which employees of the State of Texas'or any political
    subdivision, state institution, county or municipality
    thereof, are, or may be, entitled and shall not be dis-
    charged from such position without cause within one year
    after such restoration." (Emphasis added.)

     In a letter from the District Attorney of Dallae.County re-
questing an opinion from this office on a similar question, it
was stated as follows:



*All references to Articles are to Vernon's Civil Statutes.



                            -4318-
Honorable Ward P. Casey, page 3        (M-886)
                  .             .,         :

         "It is our contention that said Art. 6252-4a
    is designed to broaden the coverage to other State and
    Municipal employees which firemen and policemen pre-
    viously had under the provisions of,Art. 1269m. ....
    We also believe that as a matter of Statutory con-
    struction we may look to the provisions of Sec. 3 of
    Art. 6252-4a which speaks of 'participation in
    retirement or other benefits' in determining the
    legislative intent."

     In answering this contention it was stated in Attorney
General's Opinion No. M-250 (1968) that:

             "We agree with your liberal interpretation of these
     statutes and your conclusions. This office, inkAttorney
     General's Opinion No. C-679 (1966,),in interpreting
     this type of statute, I...noted that the courts'of this
     State have consistently construed statutes liberally’
     in favor of patriotic service and are loath to penalize
     State employees who perform such services *..l, citing
     numerous past opinions of this office.' ,It isthe opinion
     of this department that a city fireman, on returning from
     military    leave prior to the effective date of Article
     6252-4a, Vernon's Civil Statutes, is entitled to credit
     for pay purposes for the time spent inmilitary service.
     Such a procedural and remedial statute is not only con-
     strued liberally but may be applied retroactively.
     53 Tex.Jur.2d 53, Statutes, Sec. 29."

     On the basis of the holding in Attorney General's Opinion
M-250 (1968) and the facts submitted, it is our opinion that
under the provisions of Article 6252-4a, Section 3, a city fire-
man on returning from military leave is entitled to ctedit,for
pay purposes for the time spent in military service.

                            SUMMARY

               Under the provisions of Article 6252-4a,
          Section 3, Vernon's Civil Statutes, a city fireman




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Honorable Ward P. Casey, page 4       (M-886)



          on returning from military,leave is entitled to
          credit for pay purposes for the time spent in
          military service.




Prepared by Ivan Williams, Jr.
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jack Sparks
Ben Harrison
Harriet Burke
Thomas Sedberry

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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