PRICE  DA&L
ATTORNEYGENEFIN   .


                                  August 2, 1951

         Hon.     C. R. Cavness          Opinion Bo. v 1220
         State Auditor
         Austin, Texas                   Re: Proper porclon of Armed
                                             Forces compensationto
                                             be considered in calcu-
                                             lating the pay of State
                                             employees while on mill-
         Dear Sir:                           tary leave.
                   You have asked that we define "pay and allow-
         ancea nhenon active duty" as uaed in Senate Bill 1.80,
         Acts slat Leg., R.S. 1949, ch. 523, pi.954 (Art. 576gb,
         V.C.S.),in order to determine what portion of his salary
         from ~theState, if any, should be pald'to a &ate em-
         ployee on military leave. You have also asked whether
         allowances Include the value of food and quarters fur-
         nished as dlstlagulshedfrom those cases In which cash
         payments are yecelved In lieu of food and quarters.
                       Section 3 of the Article    in question states:
                        "All officer and employeee of the
                  State of Texas who shall'be members of
                  the.RatIonalGuard or official militia
                  of Texas, or members of any of the He-
                   serve Components of the Armed F'urces,
                   shall be entitled to leave of absence
                  from their respectiveduties without
                  loss of time or efficiencyrating on
                  all days on which they shall be ordered
                  by proper authority to duty with troops
                  or field exerclsee, or for Instruction
                  fornot to exceed fifteen (15) days In
                  any one calendar year; provided, however,
                   that the State Comntrollershall pay to
                  the o?flcer or employee the difference
                  between hle payand allowanceswhen'on
                  ,actlveduty, as certifiedby said officer
                   or employee. and his salary from the
                   State of Texas when the latter Is the
                  greater, and when authorized to do so by
                   th head of the Department or the direct-
                   In: board of an institutionor agency
                   where such officer or employee is employed."
                   (Emphasisadded.)
Bon. C. II. Cavnese, page 2   (v-1228)


          It itimanifest that tit purpose of this act
was to encourage public employeesxrhoare "members of
the National Guard or officialmil: :la of Texas, or
members of any of the Reserve Compoc.ntsof the Armed
Forces" to participatein the usual Laount of author-
ized military tralolng each year by providing that such
employees shall not suffer loss of tlro, efflalencyrat-
ing, or their normal pav. In the ligh of this purpose,
It la our opinion that 'pay and allowances" Is used In
this articLe In the same sense as the term "salary,"
with which that term is compared in determining the
amount-of the supplementauthorizedby the act,.and
includes all remunerationreceived by the employee IQ
the nature of salary or compensationwhile on active
dlitary GLQ.
          The term "pay" is det'lnedin the Dlctlonar
of United States Army Terms (SR 320-S-1, Dept. of A&,
August, 19501, page 166, as
     Y      regular compensatioafor Army aer-
     v~c~s'lncludinglncreaeesfor length of
     service, butnot Includingallowances,
     mileages, rations, or the like."
          Thle is la accord with the meaning given that




     .
          Allowances,on the other hand, "are Indirect
or contingent remuneration,which may or may not be
earned, and whioh Is soretimes la the nature of aompen-
satlo:, and sometimesIn the nature of reimbursement.
        Sherburne v. United States, 16 Ct. Cl. 491, 497
{l&i). Those which are la the nature of compensation.
such as monetary allowancesfor dependents,are to be
Included la computing the "pay and allowances" under
Article 5769b. Those whloh are In tQe nature of relm-
bursemeat should not, In view of the purpose of Article
5769b, be included in such compui?tion. Of this nature
are travel allowances or mileage and quarters or rental


     u   Unlted,Statesv. Smith, lg U.S. 346 (1895).
,   -




                                                           ‘;,   ,.      ,!.:



             Hon. C. H. Cavness, page L     (vii228)


          allowances.2 We think subsistenb?allowances are'of
        _.:
          the same nature as quarters allowr.Tcesand shduld
          also be excluded. This is consistuntwith the rule
          that quarters 8sd subsistenceallowz.ces "are not
          consideredas Income for the purposes of taxation."
          Bercaw v. Commlselonerof Internal Rii-,     165 F.
          2d 521, 524 (C.C.A. 4th 1948). Since quarters and
          sunslstenceallowancesare not to be I -1gded In
          the computation,a fortlorl the value cf food and
          quarters:f.nnlshed in kind should not be included.




                          .In Jomputlng "pay Andyallowances" 1
                      0f.a State employee on actie mll:tary
                     duty under Article.576gb, V.C'.S.,~the
                    ,regular‘compeasatlon  for Army 'services,,,;
                      Includingincreases for length~of ser-
                      vice and hazardous duty pay, shouid be '.
                      Included,as well as monetary allowances
                     Tar  clependents.Travel ailowances or
                    -mileage, quarters allowances, s&istence'
                                  and the value of food and
                     'al~lowanr.es,:
                     quart.%8 furnished,in kind should not be
                      Included In such computation..


         ,     :,
                                                  Yours   very        trwjJ,
             ..,
                                                    PRICE DAlpIEL
             APPRovEb:                            Attorney General


             Everett.Hutchinson
             Executive Assistant

             Charles-D.Mathews
             First Assistant

             JSM/JPL:jmC



                     q   Jones v. United States, 60 Ct. c1.,$52 (1925).
