                     The Attorney                      General            of Texas
                                             June 29,           1979




                 lionorable Jarvb Miller, President                    Opinion No. NV+29
                 The Texas A h MUniversitv Svatem
                 College Station, Texas 770-h -                        Re: Rfghts of the State Employee
                                                                       on Active Duty for .Tmining rtth
                                                                       the Nntiaml Qumd.
-.SlJll8XW
a.Tx.maw
42444
                 Dear Preeident Millem
                       You have lvxplded our apbllon al two questionr regard@ the fighta
                 of~~~em~~~to~~dutpfor~~bythaTanrkmy
                 Nattonrl Cl*      ‘T?m individual about whom ycu Inquire has rekmtly
                 completed If to 24 reek8 of bwic train& 8nd you first h6k Etz,t;
                 shouubeco~~foranyor~ofthi8peri~of~
                 of artlck 5765, Y.T.C.S.,provIdea

                               Sec. 1. Q Au          and employeea ef the 8tnte
                                                      0rnm
                            of TOXIW
                                   and of any county     or political abdiv&ioa
                            thereon tocluding munlcipelit~ who dmll be mem
                            ban of the st6te Mllita~ Porce4 or membem of any
                            of the ReMwe comts            of the Arllted Force4
                            shall be entitled to leave of hence       imm their
                            respective fhtles witbout bea of time or efficiency
* Tmm.suaC
ml. TX. mol                 mtiegavacationtimeor6alaryondldaysduring
ml                          WhiChthtgShflllba~inClUthO?Mt?dningOt
                            duty ordered cr authorked by pw      @uthority, for
                            nottoexceedfifteeno)daysinanyonee4den&c
mnuasui*4m
-.   TX.mzw                 YW*
Ml*1




                       h Attcrney Qcncml Qphth c-m (196Sh this office ccr&mWi the
                 &vmdmmx of seetlon 7, artlcle 5769b4, V.T.C.S. (rqmeled), which provided
             .   for oompaMutian
                            on all days cm jvhich btntc employeesI 8hall be
                            ordered to ch~tywith troops cr field exercises, or fur
Nwombk Jew& Miller       -   Pa@ Two :.MbZ-22)


           hwtruction, for not to exceed dfteen 05) daya in any ale CdeaQr
           yeclr.

This apinion held that the ‘&lay provisiar was not a@kable to we&end duty or
 kstrwtiw but ~a.9 limited to Summer camp” trait&q. Mkequently, however, the
 legislature amended the statute to its present version. Acts lS65,SSth Leg., eh. 696, at
‘1601. As a result, the Attomey General construed swtion T to permit compensation
 witbut loss of pay on any ls wak       daya per yaw, whether a wt taken consecutively.
                                   7 .
 Attorney General Opinion cd79 (1966
     ~Inouropinton,tNsview~apOlleableto~pariadrinwMdrMindividualh~~
&I %uthaiwd    tmining la duty.” A state employcla b wtitkd to be wmpbasated for ah
such leave, not to exceed 15 working days per year, whsther his absence is attributabk to
basic training, summer camR or any other duly ordered wrvice.               Although the
aDpmpriatiam act, Acts 1977, 65th ‘Leg., ch. 672, at 2147, S?(f& authoriaes *a leave of
absence with full payv la state employees calkd to active duty with the National Guard,
we believe It b required to be construed in harmcny with artkk 5765, which limits
comPensatkn to 15 worhin6 days per year.
     You else inquire about a state agency% obli6atkn to restae an individual to his
farmer Position after wmpktim of mititary servke. Section T(b)of artick 5765 states:
             (b) Members of the State Mlitary For&, a members of any of
           thaReserveComponentsoftheArmedForce8whoarehthe
           e~~yoftheStateofTeuqwhoaracrderedta&tpbyproper
           authority sha& when re*ved fram duty, be restored to the
           positim held by them when ordered to duty.
Swtion 1 of artkk 6252-44 V.T.C.S.,however, ~rovh+

           Any employw of the State of Texas or any politkal subdivision,
           state institution,~ county or niunicipality thereoc other than a
           temporary employw, w eketed 0ffkkL a one servbq under an
           appointment whkh requires confirmation by the Senate, who kaves
           hispositionforthsplrposeoislltcrinqtheArmsdForarofult
           United States, or enters State servke as a member of the Texas
           National Quad a Texas State Guard a as a member of any of the
           resave wmpownta of the Armed Forcer of the United States
           shall, if dischhged, separated a released from such active military
           savlw under howmbk conditions withia five years from the date
           of enlistment a csll to active serviea, bs restored tqemployment
           in the same depurlment, offlw, wmmimkn or board of the State
           of Texas a any Political ntbdiviskn, state institution, county or
           mwkipality therwf, to the same Position held at the time of
           kductio;c, enlistment a order to active Federal or State military
           &ty or service, a to a Position of 3ike seniaity, status, and Pay if




                                          p. 98
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    :       .

i
                  Hwaabls Jawb MIlla          -   Pa#cThree     (Ia+291


                                 still p@skaUy snd mentally qualified to perform the &tks of ruch
                                 positiab

                            Artkk 6252da b not applkabk to temporary employee% ekcted offkiak, or
                      appointaer who require Swata wnfirmation. k to other employees of the state snd its
                      politkel &&isiaw,       however, a conflict between the two statutes aids, since artkk
                      5765 raquima that ths employea be minstated k his preMyikld          position, and artkle
                      6252-4a permits ths employer to restare the employee to his former position “or to a
                      pesitiar of like seniaity, status and pay,”and ad& the stipuktiaa tbat the employee must
                      remain ‘phyllcally and mentally qualifkd to perform the dutks of uch positioha It is
                      well established tha& where two statutes are In direct aonflkb the ktter enactment
                      ymaz      e State v. Dsncer, 291 tLW.td 504 (Ten. Civ. App. - Caper Christi ‘g6.5, writ
                                  ) 8~ ths present versiat of section ‘Ib of artkk 5y65 was enacted m 1965,
                      and secUo;c’l of artkk 62Stda was kst amended in 1977, it folkws that the ktter must
                      controL Weconclude, therefore, that as to all but those persons acepted thereby, article
                      6252-4a permits the state to restore the empkyw eithar to his pr~k~l p~sitian a to one
                      of like seniaity, status end pay.
                                                           SUMMARY

                                 A state employee who k waged in %uthorked train@ la tktp
                                 in the state military forcea k imtitkd to receive wmpensation for
                                 uptoiiiteenU5)w~ingda~~ycar~rlnewhich~k~t
                                 from h& re6ulsr employment. As to all but those persons acepted
                                 thereby, artick 6252-4a, V.T.C& permits a state sgency either to
                                 restore a returning ~memberof the National Quard to his farmer
                                 gGmzthyp           egancy, a to another position %$fIike sen[orIty,
                                               .




                                                                  MARK ~WHITE
                                                                  Attorney General of Taaa
                      JOBN W. PAINTRR,JR.
                      Piwt Assistant Attorney General
                      TRD L. HARTLRY
                      Executive Assistant Attorney General




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HworabkJuvb   Yllkr   -   PegePour   W-29)


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