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                                    ENE      GENERAL
                              OF     TEXAS




        The Honorable Charles L. Morris,     Opinion No. B-853
        Executive Director
        Veterans Affairs Commission          He: Disabled veterans
        P. 0. Box 12277, Capitol Station     employment preference.
        Austin, Texas 78711

        Dear Mr. Morris:

             you ask for an opinion concerning the service credit
        granted to persons who, in applying for state employment
        requiring a competitive examination, establish the existence
        of a service-connected disability.  Specifically, you ask
        whether eligibility for the credit is limited to persons
        having a disability of ten per cent or more as established
        by records of the Veterans Administration.

             Article 4413(31), V.T.C.S., specifies the honorably
        discharged military personnel who qualify for a preference
        in state employment over other applicants for the same
        position having no greater qualification.  Section 3 of
        article 4413(31) provides, in part:

                  In all public departments, commissions,
                  boards and other governmental agencies
                  and public works of this State which now
                  require or may hereafter require a com-
                  petitive examination under a Merit System
                  or Civil Service Plan of either or both
                  selecting and promoting employees, such
                  person who is otherwise eligible and
                  qualified for and entitled to preference
                  under this Act, who shall have been so
                  examined and shall have attained at least
                  the minimum required score for such test or
                  tests, shall have a service credit amounting




                                   p. 3599
The Honorable Charles L. Morris - page 2   W-853)



          to ten (10) points added to the earned rating,
                                                 j




          person or-persons whose duty it is to
          fill the position or employment applied
          for. . . . (Emphasis added).

It should be noted that the provision above does not specify
a minimum percentage of disability required before the veteran
qualifies for the additional five-point preference.

     Federal law prescribes a minimum of ten per cent (10%)
disability for purposes of compensation, 38 U.S.C. 88 314, 334,
355, but sets no such minimum amount for preference for
United States Civil Service positions.   "Disabled veteran" is
defined in 5 U.S.C. S 2108 as an individual who has served
on active duty, been honorably discharged, and "has estab-
lished the present existence of a service-connected dis-
ability or is receiving compensation, disability retirement
benefitsTor  pension . . . ." (Emphasis added). Under 5
U.S.C. s 3309, a disabled veteran (regardless of percentage
of disability) is granted ten additional points above his
earned rating on a competitive exam, as opposed to five
points for a veteran who has no disability. Under 5 U.S.C.
s 3313, for certain competitve positions, the names of
veterans having a compensable disability (i.e. a disability
of ten per cent or more) are placed on appropriate registers
ahead of all other applicants -- including any veterans
having a disability rated at less than ten per cent. The
latter provision, however, is apparently the only statute
which distinguishes degrees of disability for purposes of
preference eligibility; the significance is that a disabled
veteran whose disability is rated less than ten per cent is,
nonetheless, considered disabled, when so certified by the
Veterans Administration.  See -     Handbook for Veterans
Benefit Counselors H-27-73'=r; at page V-2-l.




                           p. 3600
The Honorable Charles L. Morris - page 3   (H-853)



     The Texas statute, article 4413(31), section 3, requires
only that "official records" establish the existence of a
service-connected disability in order for the veteran to
be entitled to the additional five point credit on the Merit
System or Civil Service Plan earned rating. The language
does not require that the disability reach the ten per cent
level required for compensation from the federal government.
Since the federal government'certifies disablity in ten per
cent increments for compensation purposes, a veteran who has
a service-connected disability which does not reach the level
of ten per cent would be certified for those purposes at zero,
even though for other purposes he isrecognized  as being,
disabled. A service-connected disability rated' at iero‘per
cent for compensation purposes which is, nonetheless, certified
as a service-connected disability by official records,
qualifies the veteran for the five point credit. Thus,
neither the Merit System Council nor any other agency may
limit the five point credit to veterans having disabilities
rated at ten per cent or more.

                      SUMMARY

          Any service-connected disability estab-
          lished by official records entitles a
          person otherwise qualifying for preference
          under article 4413(31), V.T.C.S., to an
          additional five point credit on his earned
          rating on a competitive Merit System or
          Civil Service Plan exam. Such credit
          may not be limited to veterans whose dis-
          abilities are rated at ten per cent or
          more by the Veterans Administration.




                                       General of Texas




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The Honorable Charles L. Morris   - page 4   W-853)




Opinion Committee

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