                           November 16, 1962


Honorable Franlrlin E. SSnith
County Attorney
Nuecea County
Corpus Chrlisti, Texas
                             Opinion No.   WW-1477

                             Re:   Is an employee of the State
                                   or a political   subdivision
                                   thereof,   who is a member of
                                   a reserve component of the
                                   Armed Forces, entitled     to be
                                   paid his regular salary by
                                   h1s employe,r while he is on
                                   active duty with his reserve
                                   unit, 80 long aa such mlll-
                                   tary duty does not exceed
                                   fifteen  days, even though he
                                   is also paid by the Armed
Dear Mr. snfmith:                  Forces for his military      duty?
         You have requested    the opinion of this office    as to
whether an employee of the State or a political        subdivfsion
thereof,   who fe a member of a reserve component of.the        Anned
Forces, ia entitled    to be paid his regular salary by his em-
ployer wbkle he is on active duty with his reserve unit, so
long as such nili-        duty does not exceed fiiteen    days, even
though he is also paid by the Armed Forces for his military
duty.
        Article  5769b-1,   Vernon's Civil Statutes,   is the stat-
ute which controls    this particular    question. This statute is
quoted in pertinent    part, as follows:
               "Section 1.      All officers   and employees
        of the State of Texas and of any county or
        political     subdivision    thereof,   including munl-
        clpalltiee,     who shall be members of the National
        Guard or OfYlcial       Militia   of Texas, or members
        of any of the Re8eNe          Components of the Armed
        Forces, shall be entitled         to leave of absence
        from their respective        duties without loss of time
        or efficiency      rating or vacation time or salary
Hon. Franklin      L. Smith, page 2 (WW-1477)


          on   all days during which they shall be engaged
          In   field  or coast defense training and all days
          of   parade or encampment, ordered or authorized
          by   proper authority.
                “Sec. 2. All officers       and employees of
          the State of Texas and of any county or pollti-
          cal subdivision     thereof,  Including munlcipall-
          ties,  who shall be members of the National Guard
          or Official   Militia    of Texas, or members of any
          of the Reserve Components of the Armed Forces,
          shall be entitled     to leave of~absence from their
          respective   dutieswithout     loss of time or effl-
          clency rating or vacation time or salary on all
          days on which they shall be ordered by proper
          authority   to duty with troops or field      exercises,
          or for Instruction,      for not to exceed fifteen
          (15) days In, any one calendar year.”
         Controversy has arisen over the suggestion that this
statute   should be interpreted    so as to insure the employee,
t$:~~;:   will suffer no decrease in salary during his military
         . This was the situation      under the prior form of this
statute,     For Information,   the earlier  statute,  Article 5769b,
Vernon’s Civil Statutes,      Is quoted in pertinent   part:
                “Section 1. All. officers      and employees of
          the State of Texas who shall be members of the
          National Guard or official     militia   of Texas, or
          members of any of the Reserve Components of the
          Armed Forces, shall be entitled       to leave of ab-
          sence from their respective      duties without loss
          of time or efficiency    rating,cn    all days during
          which they shall be engaged in field        or coastde-
          fense training,   ordered or authorized by proper
          authority.
                “Sec. 2. All officers    and employees of the
          State of Texas who shall be members of the Mation-
          al Guard or official  militia   of Texas, or members
          of any of the Reserve Components of the Armed
          Forces, shall be entitled    to leave of absence
          from their respective   duties without loss of time
          or efficiency  rating on all days of any parade or
          encampment, ordered or authorized    by proper author-
          ity.


                                 :
Hon.   Franklin   L. Smith, Page 3 (WW-1477)


               “Sec. 3.    All officers     and employees of
         the State of Texas who shall be members of the
         National Guard or official       militia    of Texas,
         or members of any of the Reserve Components of
         the Anned Forces,     shall be entitled      to leave
         of absence from their      respective    duties wlth-
         out lose of time or efflalency         rating on all
         daye on which they shall be ordered by proper
         authority to duty with troops or field exercises,
         or for instruction,     for not to exceed fifteen
         (15) aa98 In any one calendar year; provided,
         however, that the State Comptroller           shall pay
         to the officer    or employee the difference.        be-
         tween his base pay and allowances when on ac-
         tive duty, as certified       by said officer      or em-
         ployee, and his salary      from the State of Texas
         when the latter     la greater,    and when authpriz-
         ed to do so by the head .of the Department or
         the directing    board of an institution        or agency
         uhere ,suah officer    or employee is employed."
        This last-quoted     statute was enacted by the Legislature
In  1949 and may be found In Chapter 523, page 954, Acts of the
51st Legislature,     Regular Session     1949.   It can readily    be
seen that this statute provided that the employee would lose
no pay and that the employer would make up the difference              be-
tween the employee's Armed Servlces pay and his regular State
salary.   In 1953, the Legislature        amended this statute by the
enactment of Artlale     5769b-1,   portions    of which have been quot-
ea. It will be noted that in this later statute, the Leglsla-
ture added officer8     and employeea of politic&l       subdivisions
and deleted that portion of the earlier          statute requiring     the
State Comptroller to pay the officer          or employee the difference
between his pay from the Armeg Forces and his salary from the
State of Texas, when the latter        Is greater.     Further, this
later statute specifically       repealed the earlier     statute,    as
shown by Section 5 thereof.        By the changes made, the Legls-
lature clearly    evidenced an lntention,to       alter the provisions
regarding the payment of salary.
        In Article   5769b-1,  the Legislature   refers to “without
loss of time or efficiency     rating or vacation time or salary."
The Legislature    makes no reference   to partial   losses of time
or to grants of authority     to make adjustments in any of these
allowances.    Further, In the sense that the word "salary"       is
Hon. Franklin    L. Smith, page 4 (W-1477)


used, with reference      to State employees, Black's Law Dic-
tionary,   4th Rd., defines it as meaning, "A fixed,         annual,
periodical   amount payable for services       and depending upon
the time of employment and not the amount ‘of servlc.es ren-
dered."    The amount that the employee ins entitled        to receive
Is fixed upon an annual basis.         The State  Comptroller   or
other disbursing    officer    has no authority   to~vary the amounts
payable except In specifically       e,numeigted instances.     By
altering   the statute as It has been altered in this case, it
Is the opinion of this office       that the Legislature     has taken
from the Comptroller      any authority   to make a salary adjust-
ment where military      training for a period of less than fif-
teen days Is concerned.
         The Legislature    has consistently    encouraged the per-
formance of patriotic      duties by employees of this State.       It
is well within the power of the Legislature         to provide that
employees who contribute       their time and energy to Reserve
duties should be paid their full salary by the State or poli-
tical   subdivision   thereof,   while such employee serves his
required active duty training time.          It is the opinion ~of this
office   that It was the Intent of the Legislature        In enacting
Article   5769b-1,  to provide that a State employee would con-
tinue to draw his full salary during the time he was engaged
In field training with a reserve component of the Armed
Forces, provided such period did not exceed fifteen          days per
year.
         We appreciate  the able brief    filed   by you in connec-
tion   with this opinion.

                              SUMMARY "
          t.

                An employee of the State, or a
                political   subdivision  thereof, whop
                is a member of a reserve component
                of the Armed Forces, Is entitled,    by
                Article   5769b-1, Vernon's Civil Stat-
                utes, to be paid his regular salary
                by his employer while he is on ac-
                tive duty with his reserve unit, so
                long as such military    duty does not
                exceed fifteen    days, even though he
Hon. Franklin    L. Smith, page 5 (WI-1477)


                is als6 paid by the Armed Forces
                for his military duty.

                            Yours very truly,
                            WILL WILSON
                            Attorney General    of Texa




MLQ~:ms

APPROVED:
OPINION COMMITTEE
Cecil    C. Rotach,   Chairman
Pat Bailey
Marvin  Thomas
REVIEWEDFCRTHEATTORNEYGENERAL
By:  Leonard Passmore
