Attorney General Opinion WW-1453

FVIlLL WILSON ATI-0RNEY GENERAL Aus-rxzs PIL. TEXAS October 18, 1962 Mr. Charles L. Morris Executive Director Veterans Affairs Commission Austin, Texas Opinion No. WW-1453 Re : Whether certain State employees will be eligible to be restored to state employment under Arti- cle 6252-4, Vernon's Civil Stat- Dear Mr. Morris: utes, under stated facts. From your letter requesting an opinion from this of- fice, we quote as follows: “We desire the opinion of your office concern- ing re-employment rights for State employees after serving with the Armed Forces, as enacted in Arti- cle 6252-4, Vernon's Civil Statutes. "This office has had inquiries from State agen- cies concerning State employees who were called into active duty with the 49th Armored Division in 1961, and were to have been released with other members of the 49th Division in August, 1962. Certain State employees have requested, and have been ordered to another year of active duty. l'Your opinion is requested as to whether these certain State employees will be eligible for restora- tion of State employment after being released from this subsequent period of service. "Your opinion is necessary due to the fact that State agencies need a clarification of this Statute, concerning re-employment of State employees when they are eventually released from the Armed Forces, so that employment of personnel and other personnel practices can be planned in accordance with your construction of this Statute." Mr. Charles L. Morris, page 2 ww-1453) In 1961~~ with the nation concerned with the crisis over Berlin, the President declared that there existed a state of national emergency, and requested Congress to grant him the power to order to active federal duty certain units and members of the 'Ready Reserve.' Congress responded to the President's request by pass- ing a Joint Resolution which authorized the President to order units and members in the Ready Reserve to active federal mili- tary duty for a period of not more than twelve months. Also, this Resolution provided that the President, prior to the expi- ration of the initial period, could authorize the Secretary of Defense to extend the military status of such units and members for an additional twelve month period. This Joint Resolution of Congress reads as follows: "ARMED FORCES-READY RESERVE PUBLIC LAW 87-117: 75 STAT. 24? (S.J. Res. 120) "Joint Resolution to authorize the President to order units and members in the Ready Reserve to active duty for not more than twelve months, and for other purposes. "Resolved by the Senate and House of Representa- tives of the United States of America in Congress assembled, That: "Notwithstanding any other provision of law, until July 1, 1962, the President may, without the consent of the persons concerned, order any unit, and any member not assigned to a unit organ- ized to serve as a unit, in the Ready Reserve of an armed force to active duty for not more than twelve consecutive months. However, not more than two hundred and fifty thousand members of the Ready Reserve may be on active duty (other than for training), without their consent, under this sec- tion at any one time. Vet. 2. Notwithstanding any other provision of law, until July 1, 1962, the President may au- thorize the Secretary of Defense to extend enlist- ments, appointments, periods of active duty, periods of active duty for training, periods of obligated service, or other military status, in Mr. Charles L. Morris, page 3 (~~-14.53) any component of an armed force or in the Na- tional Guard that expire before July 1, 1962, for not more than twelve months. "Approved August 1, 1961." Pursuant to this Resolution and pre-existing statutory authorization, the President issued the following executive or- ders: "EXECUTIVE ORDERS NO. 10957 August 15, 1961, 26 F.R. 7541 "ASSIGNING AUTHORITY WITH RESPECT TO ORDERING PERSONS AND UNITS IN THE READY RESERVE TO ACTIVE DUTY AND WITH RESPECT TO THE EXTENTION OF ENLISTMENTS AND OTHER PERIODS OF SERVICE IN THE ARMED FORCES "By virtue of the authority vested in me by the Joint Resolution of August 1, 1961 (P.L. 87- 117), and by section 301 of title 3 of the United States Code and as President of the United States, it is hereby ordered as follows: "Section 1. The Secretary of Defense, and, when designated by him for the purpose, any of the Secretaries of the military departments of the Department of Defense, are hereby authorized and empowered to exercise the authority vested in the President until July 1 1962, by section 1 of the Act of August 1, 1961 tPublic Ian 87-117) to order without the consent of the persons concerned, any unit, and any member not assigned to a unit organ- ized to serve as a unit, in the Ready Reserve of an armed force to active duty for not more than 12 consecutive months, provided there are not more than 250,000 members of the Ready Reserve thereby on active duty (other than for training) without their consent at any one ,time. However, the Sec- retary of Defense may not order any unit in the Ready Reserve of an armed force to active duty, other than active duty for training under this sec- tion without the approval of the President. "Section 2. In pursuance of the provisions of section 2 of the said Joint Resolution of August Mr. Charles L. Morris, page 4 (W-1453) 1, 1961, the Secretary of Defense is hereby au- thorized to extend enlistments, appointments, periods of active duty, periods of active duty for training, periods of obligated service, or other military status, in any component of an armed force or in the National Guard that ex- pire before July 1, 1962, for not more than twelve months. JOHN F. KENNEDY THE WHITE HOUSE August 10, 19bP In accordance with these executive orders, the Secre- tary of Defense in the fall of 1961, ordered the 49th Armored Division to active federal duty. , Section 1 of Article 6252-4 reads as follows: "Sec. 1. Any employee of the State of Texas, other than a temporary employee, an elected official or one serving under an appoint- ment which requires confirmation by the Senate, who leaves his position in time of war or during the national emergency and enters the military, air or naval forces of the United States or other active Federal military duty or service by reason of induction into the armed forces of the United States or in compliance with orders to active Federal military duty, or enters service as a member of the Texas National Guard or Texas State Guard or as a member of any of the reserve compo- nents of the Armed Forces of the United States shall, if discharged, separated or released from such active military service under honorable con- ditions, be restored to employment in the same department, office, commission, board or other agency of the State constituting employment by the State of Texas, and to the same position held at the time of induction or order to active Federal or State military duty or service, or t0 a position of like seniority, status and pay if still physically and mentally qualified to per- form the duties of such position." There are no provisions in this Section which limit or otherwise specify the period of time a State employee is author- ized to serve on active federal duty in order to be entitled upon honorable release to restoration of State employment. It Hr. Charles L. Morris, page 5 (w-1453) is our opinion that once a State employee, in time of national emergency, complies with an order to active federal military duty, the period of service is immaterial to the right of res- toration of State employment. We are of the opinion that such right vests at the time such individual is discharged, separ- ated or released from active federal service under honorable conditions. On the basis of the clear and unambiguous language of this Section, you are advised that those State employees, other than a temporary employee, an elected official, or one serving under an appointment which requires confirmation by the Senate, who leave their positions in time of national emergency in com- pliance with an order to active federal service in the Armed Forces of the United States, are entitled, upon release under honorable conditions from active duty, to restoration of State employment in the same position held at the time of the order to active federal duty, or to a position of like seniority, status and pay if still physically and mentally qualified to perform the duties of such positions. SUMMARY Certain State employees are entitled to restora- tion of State employment, upon release from active federal military duty. Sincerely yours, WILL WILSON Attorney General of Texas IRW :mkh :wb Assistant APPROVED: OPINION COMMITTEE Howard Mays, Chairman Marvin Thomas Arthur Sandlin Malcolm Quick REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore