                      AUSTIN’.      TEXAS     'R'S911

                                 June 28, 1968

Ronorable Renry Wade                    Opinion No. M-250
District Attorney Of~Dallas
   county                               Re:   Whether under Articles
Dallas County Government Center               1269m and 6252-4a, V.C.S.,
Dallas, Texas 75202                           a city fireman, on return-
                                              ing from military leave
                                              prior to the effective
                                              ,dateof Article 6252-4a,
                                              is entitled to credit for
                                              pay purposes for the time
Dear Mr. Wade:                                spent in military service.
            In your request for an opinion you state the follow-
ing:
            ". . .

            "On Novembpr 1,~1965, the Fireman in
       question was employed and commenced working
       for the City as a fireman. He worked contin-
       uously from the date of his employment until
       March 16, 1967, on which last mentioned.date.
       he was granted a Military Leave of Absence to
       enter the Military Service of the United States, :
       as provided in Sec. 22a of said Art. 1269m.
       After obtaining Leave of Absence, he served
       122 days in the Military Service, Andyafter
       being discharged therefrom, he duly made ap-
       plication for reinstatement and went back to
       work as a fireman for the City on August 1,.
       1967, where he has worked continuously to
       this date.
            "under the rules, policies ‘aa ordinances
       of the City,,firemen and policemen whose.em-
       ployment extends beyond the probationary period
       of six months are automatically entitled to an
       increase in salary at the end of the first year
       of service, and to an additional increase upon
       the completion of each year of service there-
       after.
            "The salary of the Fireman in question
                               -. 1213 -
Hon. Henry Wade, page 2   (~-250)


    was increased in accordance with this policy
    on November 1, 1966. After completing his
    Military Service in 1967 and rejoining the
    Department on August 1, 1967, he anticipated
    that he would receive his second anniversary
    increase on or about November 12, 1967, he
    being of the opinion that the 122 days spent
    in Military Service should be considered and
    allowed as credit in determining his next an-
    niversary date.
          *The Civil Service Board was of a con-
     trary opinion, and his second anniversary in-
     crease was not granted until on or about Feb-
     ruary 12, 1968.
         "Sec. 22a of said Art. 1269m entitled
    Military Leave of Absence provides in part as
    follows:
          "'Upon being returned to said position,
     such member shall receive full seniority credit
     for the time spent in the Military Service.'

          "Sec. 3 of Art. 6252-4a 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 absence in Fea-
    era1 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 discharged from such position without
    cause within one year after such restoration.
         "The City contends that since the Fire-
    man in question returned to his job on August
    1, 1967, and the effective date of Art. 6252-4a
    was not until August 28, 3.967,that the provisions
    of such Statute are not available to him.
         "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 previously had under the provisions of
                              -1214-
Hon. Henry Wade, page 3   (M-250)



    Art. 1269m. In addition, said Art. 6252-4a pro-
    vided a procedural remedy to enforce his rights
    through the office of the District Attorney and
    the Courts.
         "It is our further position that the Fire-
    man in question was entitled, for pay purposes,
    to credit for the time which he spent in Military
    Service even though Art. 6252-4a had never been
    enacted. Thus, if we bs right in our opinion,
    the question is resolved to whether the term
    'full seniority credit' is broad enough to in-
    clude credit for time spent in Military Service
    as it relates to longevity pay increases. The
    only other reason we can conceive.at the moment
    for such provision would be for retirement pur-
    poses, ana we believe that the Legislature in.
    using the term 'full seniority credit' had some-
    thing in mind otherthan retirement. We also
    believe that as a matter of Statutory construc-
    tion 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."
           We agree with your liberal interpretation of these
statutes ma your conclusions. This office, in Attorney General's
Opinion No. C-679 (1966), in interpreting this type of statute,
" . . . noted that the courts of this State have consistently
construed statu,tesliberally in favor of patriotic service and
are loath to penalize State employees who perform such services
. . .I citing numerous past opinions of this office. It is
the opinion of this department that a city fireman, on return-
ing 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 in military  service. Such a pro-
cedural and remedial statute is not only construed liberally but
may be applied retroactively. 53 Tex.Jur.2d 53, Statutes, Sec.
29.
                           S U,MMARY
          Under Articles 1269m and 6252-4a, Vernon's
     Civil Statutes, a city fireman, on returning
     from military leave prior to the effective date
     of said Article 6252-4a, is entitled to credit
     for pay purposes for the time spent in military
     service.

                                    - 1215 -
Bon. Henry Wade, page 4   (M-250)



                      ,




                                               General of Texas
Prepared by Jack Sparks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE"
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
Alan Minter
James Quick
Mark White
Arthur Skibell
A. J. CARUBBI, JR.
Executive Assistant




                                    - 1216 -
