         TIIB: ATNDRNEY    GENERAL
                  OF TEXAS
                    Au-.    mExA0767ll
                      Pebruary 9, 1977




The Honorable Henry Rothell           Opinion No. H-941
Administrator
Texas Employment COKURiSSiOn          Re: Vacation entitlement
Austin, Texas 70770                   of state employees who
                                      return to state employment
                                      after service in the armed
                                      forces.
Dear Mr. Rothell:
     You have requested our opinion concerning the rights
of a state employee who returns to state employment after
service in the armed forces with respect to vacation and
sick leave entitlement.

     Article 6252-4a, V.T.C.S., provides in part for the
restoration to employment of state employees following their
discharge from the armed forces. Two opinions of this office
have held that persons reemployed are entitled to longevity
credit for pay purposes for the time spent in the military.
Attorney General Opinions M-886 (1971); M-250 (1968).
These opinions were based upon a liberal interpretation of
section 3 of article 6252-4a, which provides in part:
          Any person who is restored to a position . . .
          shall be considered as having been on furlough
          or leave of absence . . . and shall be entitled
          to participation in retirement or other benefits
          to which employees of the Stateof Texas . . .
          are, or may be, entitled . .'. . (Emphasis added).



                            p. 3936
r-. -


        The Honorable Henry Rothell - Page 2 (H-941)


        In M-250   and M-886, the language "or other benefits" was
        construed to require the inclusion of time spent in the
        military within the employee's longevity of employment.
        We see no distinction between longevity for pay purposes and
        longevity of employment for purposes of vacation and sick
        leave entitlement. Accordingly, in our opinion, state
        employees who return to state employment following military
        service are entitled to the inclusion of the time spent in
        the military in the determination of their longevity of
        state employment for purposes of vacation and sick leave
        entitlement. However, we do not perceive any indication
        that the Legislature intended that an employee accrue
        vacation and sick leave while serving in the armed forces.
        These benefits are forms of compensation and generally
        accrue only while an employee is on the state payroll.
        See General Appropriations Act, art. 5, S 7, Acts 1975,
        mh     Leg., ch. 743 at 2849.
             You have referred us to section 7d of article 5 of
        the Appropriations Act, as well as to federal law concerning
        veterans' reemployment. Section 7d provides for vacation
        and sick leave accrual for:

                  An employee called to active ,duty
                  during a national emergency by a reserve
                  branch of the United States Armed Forces. . . .
        This appears to be a safeguard measure in the event of a
        national emergency requiring the activation of reserve
        military forces, and there is no indication that it is
        applicable to the individuals involved here.
             The relevant federal law is found in 38 U.S.C. 2021,
        which provides for veteran reemployment rights. In 1974
        section (a)(B) thereof was amended to apply to employees
        of states. However, the Act applies only to persons leaving
        military service after its effective date , which was December 3,
        1974. See note following section 2021; Field Letter 23,
        U.S. Dept. of Labor. In addition, the statute does not
        require the accrual of sick leave and vacation benefits
        while on active duty; it is merely suggested as the "sense
        of Congress." 38 U.S.C. 2021(b) (2). Consequently, the
        federal law does not conflict with state law and does not affect
        our decision.



                                  p. 3937
The Honorable Henry Rothell - page 3    (H-941)


                       SUMMARY
            A state employee returning to State
            employment following service in the
            military is entitled to have his time
            on active duty included within his
            longevity of employment for purposes
            of vacation and sick leave entitlement,
            but does not accrue vacation or sick leave
            while on active duty and not in the employ
            of the state.

                                 Very truly yours,




APRROVED:
                           /u    Attorney General of Texas




Opinion Committee




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