Untitled Texas Attorney General Opinion

PRICE DA&L ATTORNEYGENEFIN .

August 2, 1951

Hon. C. R. Cavness Opinion Bo. v 1220 State Auditor Austin, Texas Re: Proper porclon of Armed Forces compensationto be considered in calcu- lating the pay of State employees while on mill- Dear Sir: tary leave. You have asked that we define "pay and allow- ancea nhenon active duty" as uaed in Senate Bill 1.80, Acts slat Leg., R.S. 1949, ch. 523, pi.954 (Art. 576gb, V.C.S.),in order to determine what portion of his salary from ~theState, if any, should be pald'to a &ate em- ployee on military leave. You have also asked whether allowances Include the value of food and quarters fur- nished as dlstlagulshedfrom those cases In which cash payments are yecelved In lieu of food and quarters. Section 3 of the Article in question states: "All officer and employeee of the State of Texas who shall'be members of the.RatIonalGuard or official militia of Texas, or members of any of the He- serve Components of the Armed F'urces, shall be entitled to leave of absence from their respectiveduties without loss of time or efficiencyrating on all days on which they shall be ordered by proper authority to duty with troops or field exerclsee, or for Instruction fornot to exceed fifteen (15) days In any one calendar year; provided, however, that the State Comntrollershall pay to the o?flcer or employee the difference between hle payand allowanceswhen'on ,actlveduty, as certifiedby said officer or employee. and his salary from the State of Texas when the latter Is the greater, and when authorized to do so by th head of the Department or the direct- In: board of an institutionor agency where such officer or employee is employed." (Emphasisadded.)

Bon. C. II. Cavnese, page 2 (v-1228)

It itimanifest that tit purpose of this act was to encourage public employeesxrhoare "members of the National Guard or officialmil: :la of Texas, or members of any of the Reserve Compoc.ntsof the Armed Forces" to participatein the usual Laount of author- ized military tralolng each year by providing that such employees shall not suffer loss of tlro, efflalencyrat- ing, or their normal pav. In the ligh of this purpose, It la our opinion that 'pay and allowances" Is used In this articLe In the same sense as the term "salary," with which that term is compared in determining the amount-of the supplementauthorizedby the act,.and includes all remunerationreceived by the employee IQ the nature of salary or compensationwhile on active dlitary GLQ. The term "pay" is det'lnedin the Dlctlonar of United States Army Terms (SR 320-S-1, Dept. of A&, August, 19501, page 166, as Y regular compensatioafor Army aer- v~c~s'lncludinglncreaeesfor length of service, butnot Includingallowances, mileages, rations, or the like." Thle is la accord with the meaning given that

. Allowances,on the other hand, "are Indirect or contingent remuneration,which may or may not be earned, and whioh Is soretimes la the nature of aompen- satlo:, and sometimesIn the nature of reimbursement. Sherburne v. United States, 16 Ct. Cl. 491, 497 {l&i). Those which are la the nature of compensation. such as monetary allowancesfor dependents,are to be Included la computing the "pay and allowances" under Article 5769b. Those whloh are In tQe nature of relm- bursemeat should not, In view of the purpose of Article 5769b, be included in such compui?tion. Of this nature are travel allowances or mileage and quarters or rental

u Unlted,Statesv. Smith, lg U.S. 346 (1895). , -

‘;, ,. ,!.:

Hon. C. H. Cavness, page L (vii228)

allowances.2 We think subsistenb?allowances are'of _.: the same nature as quarters allowr.Tcesand shduld also be excluded. This is consistuntwith the rule that quarters 8sd subsistenceallowz.ces "are not consideredas Income for the purposes of taxation." Bercaw v. Commlselonerof Internal Rii-, 165 F. 2d 521, 524 (C.C.A. 4th 1948). Since quarters and sunslstenceallowancesare not to be I -1gded In the computation,a fortlorl the value cf food and quarters:f.nnlshed in kind should not be included.

.In Jomputlng "pay Andyallowances" 1 0f.a State employee on actie mll:tary duty under Article.576gb, V.C'.S.,~the ,regular‘compeasatlon for Army 'services,,,; Includingincreases for length~of ser- vice and hazardous duty pay, shouid be '. Included,as well as monetary allowances Tar clependents.Travel ailowances or -mileage, quarters allowances, s&istence' and the value of food and 'al~lowanr.es,: quart.%8 furnished,in kind should not be Included In such computation..

, :, Yours very trwjJ, .., PRICE DAlpIEL APPRovEb: Attorney General

Everett.Hutchinson Executive Assistant

Charles-D.Mathews First Assistant

JSM/JPL:jmC

q Jones v. United States, 60 Ct. c1.,$52 (1925).