Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
Email: swright@roa.org
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 Texas

ST46 Texas (December 2007; Updated August 2010)
1.18: USERRA and Other Laws
2.0: Paid Leave

Military Leave for Public Employees in Texas

By CAPT Samuel F. Wright, JAGC, USN (Ret.)

Section 431.005(a) of the Texas Government Code accords to public employees the right to 15 workdays of paid military leave per federal fiscal year. This entitlement applies to employees of the state, municipalities, counties, and other political subdivisions (including school districts). This paid military leave can be used for “authorized training or duty ordered or authorized by proper authority.” This apparently includes inactive duty training (drills), as well as active duty and active duty for training.

For example, Mary Smith works for the Texas Department of Transportation, in a Monday-Friday job. She is a member of the Marine Corps Reserve, and she performs inactive duty training (drills) on the first weekend of every month. Because she does not ordinarily work at her civilian job on weekends, her drill weekends do not count toward exhausting her entitlement to 15 days of paid military leave.

Ms. Smith performs annual training in the Marine Corps Reserve during the first two weeks of March. She is on annual training from Monday, March 5 until Friday, March 16 (12 days). Only 10 of those days count toward her 15-day paid military leave entitlement. Saturday (March 10) and Sunday (March 11) were not “workdays” at her civilian job.

Ms. Smith and her unit are called to active duty on Monday, Sept. 10, for a period of about a year. Mary is entitled to paid military leave for the first five workdays of her active duty (Sept. 10-14), until she has exhausted her paid military leave for Fiscal Year (FY) 2007. FY 08 starts on Monday, Oct. 1, 2007. Ms. Smith is entitled to an additional 15 workdays of paid military leave for that fiscal year. She can be on paid military leave for the first 15 workdays of the new fiscal year. Weekends and the Columbus Day holiday do not count.

After Ms. Smith has exhausted her paid military leave under the state law, she still has the right to unpaid military leave under a federal law called the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301-4335. Section 4316(d) of USERRA [38 U.S.C. 4316(d)] gives Ms. Smith the right to use, during her period of service, any vacation, annual leave, or similar leave with pay that she has accrued prior to the period of service.

Let us say that Ms. Smith has a positive balance of 10 days of annual leave in the bank as of Sept. 10, 2007, when she enters active duty. If she chooses, she can use that annual leave to remain on the state payroll during the weeks of Sept. 17 and Sept. 24, 2007. By using her annual leave and her paid military leave, she can remain on the state payroll through Monday, Oct. 22, 2007, when she will have exhausted both forms of leave. After that date, she will be on unpaid military leave under USERRA.

Of course, Ms. Smith cannot “have her cake and eat it too.” She will not continue accruing annual leave while away from work for active duty. If she exhausts all of her annual leave in September 2011, at the start of her year of active duty, she will not be able to take a paid vacation for some months after she returns to work in the fall of 2012. Using her annual leave for her military service is Ms. Smith’s choice, not the employer’s choice.

Texas law provides as follows concerning reemployment rights (after military service) for local police officers and firefighters:

“(a) On written application of a fire fighter or police officer, the commission shall grant the person a military leave of absence without pay, subject to Section 143.075, to enable the person to enter a branch of the United States military service. The leave of absence may not exceed the period of compulsory military service or the basic minimum enlistment period for the branch of service the fire fighter or police officer enters.

“(b) The commission shall grant to a fire fighter or police officer a leave of absence for initial training or annual duty in the military reserves or the national guard.

“(c) While a fire fighter or police officer who received a military leave of absence serves in the military, the commission shall fill the person’s position in the department in accordance with this chapter.

“(d) On termination of active military service, a fire fighter or police officer who received a military leave of absence under this section is entitled to be reinstated to the position that the person held in the department at the time the leave of absence was granted if the person:

“(1) receives an honorable discharge;

“(2) remains physically and mentally fit to discharge the duties of that position; and

“(3) makes an application for reinstatement within 90 days after the date the person is discharged from military service.

“(e) On reinstatement, the fire fighter or police officer shall receive full seniority credit for the time spent in military service.” (Texas Local Government Code, section 143.072 (emphasis supplied).)

(f)  If the reinstatement of a fire fighter or police officer who received a military leave of absence causes a surplus in the rank to which the fire fighter or police officer was reinstated, the fire fighter or police officer who has the least seniority in the position shall be returned to the position immediately below the position to which the returning fire fighter or police officer was reinstated.  If a fire fighter or police officer is returned to a lower position in grade or compensation under this subsection without charges being filed against the person for violation of civil service rules, the fire fighter or police officer shall be placed on a position reinstatement list in order of seniority.  Appointments from the reinstatement list shall be made in order of seniority. A person who is not on the reinstatement list may not be appointed to a position to which the list applies until the list is exhausted.

(g)  If a fire fighter or police officer employed by a municipality is called to active military duty for any period, the employing municipality must continue to maintain any health, dental, or life insurance coverage and any health or dental benefits coverage that the fire fighter or police officer received through the municipality on the date the fire fighter or police officer was called to active military duty until the municipality receives written instructions from the fire fighter or police officer to change or discontinue the coverage.

(h)  In addition to other procedures prescribed by this section, a fire fighter or police officer may, without restriction as to the amount of time, voluntarily substitute for a fire fighter or police officer described by Sections 143.075(b)(1) and (2) who has been called to active federal military duty for a period expected to last 12 months or longer. A fire fighter or police officer who voluntarily substitutes under this subsection must be qualified to perform the duties of the absent fire fighter or police officer.

Texas law provides as follows concerning reemployment after military service of employees of the state of Texas and of local government entities (other than local police officers and firefighters):

“(a) A public employee who leaves a state position or a position with a local governmental entity to enter active military service is entitled to be reemployed:

“(1) by the state or the local governmental entity;

“(2) in the same department, office, commission, or board of this state, a state institution, or local governmental entity in which the employee was employed at the time of the employee’s induction or enlistment in, or order to, active military service; and

“(3) in:

“(A) the same position held at the time of the induction, enlistment, or order; or

“(B) a position of similar seniority, status, and pay.

“(b) To be entitled to reemployment under Subsection (a), the employee must be:

“(1) discharged, separated, or released from active military service under honorable conditions not later than the fifth anniversary of the date of induction, enlistment, or call to active military service; and

“(2) physically and mentally qualified to perform the duties of that position.” (Texas Government Code, section 613.002 (emphasis supplied).)

In several important respects, these provisions conflict with USERRA. As I explained in Law Review 18, and other articles, USERRA is a floor and not a ceiling on your rights with respect to your civilian employment and military service or training. Section 4302(a) of USERRA provides that USERRA does not supersede a state law that provides greater or additional rights. A state law that purports to limit USERRA rights, or that imposes an additional prerequisite on the exercise of those rights, is superseded by USERRA, in accordance with section 4302(b) [38 U.S.C. 4302(b)].

Article VI, Clause 2 of the U.S. Constitution (commonly called the “Supremacy Clause”) provides that federal law overrides conflicting state law, or even a state constitution. Early in our nation’s history, the Supreme Court decided that the Supremacy Clause means exactly what it says—federal law trumps conflicting state law. See Gibbons v. Ogden, 22 U.S. 1 (1824).

Each of the italicized clauses of section 143.072 (above) runs afoul of section 4302(b) of USERRA and the Supremacy Clause of the Constitution. In the first italicized clause, section 143.072(a) purports to require the police officer or firefighter to make a written request for military leave. Section 4312(a) of USERRA [38 U.S.C. 4312(a)] requires advance notice, but it specifically provides that the notice may be oral or written. Please see Law Review 5.

The final sentence of section 143.072(a) provides that the duration of the military leave may not exceed “the period of compulsory military service or the basic minimum enlistment period for the branch of the service the fire fighter or police officer enters.” Wrong. Section 4312(c) of USERRA [38 U.S.C. 4312(c)] provides that the duration of the period of uniformed service may be up to five years, and in some cases longer. Please see Law Reviews 6 and 201.

Section 613.002(b)(1) of the Texas law shares the same problem. That provision requires that the person leave the period of military service prior to the fifth anniversary of starting the period. Section 4312(c) provides eight statutory exemptions from the five-year limit. As I explain in Law Review 201, all involuntary service and some voluntary service are exempted from the computation of the limit. Thus, under some circumstances a person could have the right to reemployment after a period of service of more than five years.

Section 143.072(d)(1) of the Texas law requires that the police officer or fire fighter returning from military leave must have received an “honorable discharge.” Wrong. Section 4304 of USERRA (38 U.S.C. 4304) provides that a person who has received a punitive (by court martial) discharge or an “other than honorable” administrative discharge is disqualified from reemployment rights. A person who has received a general discharge (under honorable conditions) or an uncharacterized entry-level separation can have reemployment rights under USERRA. Moreover, most persons leaving active duty in recent decades have not received discharges—they are simply released from active duty with a Department of Defense Form 214 (DD-214). Such persons have reemployment rights under USERRA. Please see Law Review 6.

Section 143.072(d)(2) of the Texas law provides that the police officer or fire fighter returning from military service does not have the right to reemployment unless he or she “remains physically and mentally fit to discharge the duties of that position.” Wrong. (Section 613.002(b)(2) shares the same problem.) USERRA’s Section 4313(a)(3) applies to the situation of a person returning from military service with a service-connected disability (loss of limb, post-traumatic stress disorder, etc.). The pre-service employer is required to make reasonable efforts to accommodate the disability (temporary or permanent) in the position that the person would have attained if continuously employed (usually but not always the position that the person left). If the disability cannot be reasonably accommodated in that position, the employer must reemploy the person in another position for which the person is qualified or can become qualified with reasonable employer efforts.

Joe Smith was a fire fighter for the city of Houston before he was called to the colors. He was seriously wounded in an improvised explosive device explosion in Iraq, and he has lost his left arm and left leg. I am willing to stipulate that a person with one arm and one leg cannot be a fire fighter. But the city of Houston no doubt has many jobs for which Mr. Smith is qualified or can become qualified—a reference librarian at the city library or a clerk in the city tax department, perhaps. His employer is the city of Houston, not just the fire department. Please see Law Reviews 121, 136, 199, and 0640.

Section 613.002(a)(3) of the Texas law has an additional problem. This section provides that the public employee returning from military service is entitled to reinstatement in the position of employment that the individual left. In some cases, that is not good enough. Under the escalator principle, the returning veteran is entitled to a better position than that which he or she left, if (based on the operation of a seniority system) it is reasonably certain that the person would have been promoted to a better position if the individual’s civilian career had not been interrupted by military service.

In its first case construing the reemployment statute, the Supreme Court enunciated the escalator principle when it held, “[The returning veteran] does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.” Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284-85 (1946). Section 4316(a) of USERRA [38 U.S.C. 4316(a)] codifies the escalator principle.

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