Do Texas Youth Commission workers earn longevity-pay credit during their first year in a hazardous job?

Plain-English summary

Texas pays its state employees two kinds of seniority-related extra pay that matter here. "Longevity pay" (Government Code chapter 659, subchapter D) is a small monthly bonus, four dollars per year of "lifetime service credit," that a full-time employee starts collecting after five years on the job. "Hazardous duty pay" (chapter 659, subchapter E) is a separate bonus, set at the time for $7 a month per year of service, for employees in dangerous positions. The two do not stack: when an employee is getting hazardous-duty pay, that pay is "instead of" longevity pay.

The Texas Youth Commission, whose staff supervise youth in correctional facilities, asked two questions. The first was about timing. A prior opinion (JM-548) had read the hazardous-duty statute to mean an employee does not actually start receiving hazardous-duty pay until after a full year in the hazardous position. So during that first year, the employee is in a hazardous job but is not yet drawing hazardous-duty pay. Does the employee keep building lifetime service credit toward longevity pay during that gap year?

The Attorney General said yes. The statute that pauses longevity-credit accrual does so only "for the period in which the employee receives hazardous duty pay." Since the employee is not receiving that pay during the first year, nothing pauses the accrual, and lifetime service credit keeps building under the longevity-pay rules. The "instead of" language only displaces the longevity payment itself; it does not stop the underlying service credit from accruing.

The second question was about who qualifies. Could part-time and hourly Youth Commission employees in hazardous positions receive hazardous-duty pay, or was it limited to full-time staff? The office concluded part-time and hourly employees were eligible too. The statutes spoke of "an eligible employee," "an employee of the state," and "an employee of the Texas Youth Commission," and never limited the covered class to full-time workers. Following the canon that when the Legislature writes no exception, courts presume it intended none (and an earlier opinion, JM-407, applying the same logic to longevity service credit), the office read the hazardous-duty provisions to cover part-time and hourly employees, subject to the statute's other conditions. The office was careful to separate two different things: eligibility to accrue service credit (open to part-time and hourly employees) is not the same as eligibility to actually receive longevity pay, which the statute conditions on being full-time.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion construes the state-pay provisions of Government Code chapter 659 as they stood in 1996, and the dollar figures it quotes ($7 a month for hazardous duty, four dollars per year for longevity) reflect the rates then in effect. The Texas Youth Commission itself was later abolished and its functions transferred to a successor juvenile-justice agency, and chapter 659 has been amended since. Read this page for the office's 1996 reasoning about when service credit accrues and who is eligible, and verify the current chapter 659 provisions and current pay rates before relying on any specific number here.

What the opinion meant at the time

For state employees moving into hazardous-duty positions: The opinion meant the first year in a hazardous-duty position, before hazardous-duty pay began, was not a dead year for longevity purposes. The employee kept accruing lifetime service credit during that first year, because the credit only paused once the employee was actually receiving hazardous-duty pay.

For part-time and hourly Youth Commission staff: The opinion meant they were eligible for hazardous-duty pay, not just full-time staff, subject to the statute's other conditions. The office distinguished this from the separate question of receiving longevity pay, which the statute tied to full-time status.

For agency payroll and human-resources administrators: The opinion is a statutory-reading holding. It rested on the precise trigger in subsection (c) of section 659.062 (accrual stops only "for the period in which the employee receives hazardous duty pay") and on the no-exception canon for the part-time/hourly eligibility question. The office expressly declined to decide how to calculate hazardous-duty pay amounts for part-time or hourly employees, or whether "standby" workers counted as employees.

Common questions

Does an employee keep earning longevity credit during the first year in a hazardous-duty job?
Yes, under this opinion. Because hazardous-duty pay does not begin until after a year of hazardous-duty service, the employee is not "receiving" that pay during the first year, and the statute pauses longevity-credit accrual only while the employee is receiving hazardous-duty pay.

Why doesn't the "instead of" rule stop the credit from accruing?
The office read the "instead of" language as displacing only the longevity payment, not the accrual of service credit. Subsection (c) stops accrual only "for the period in which the employee receives hazardous duty pay," so first-year accrual continues.

Can part-time or hourly employees get hazardous-duty pay?
Yes, according to this opinion, subject to the statute's other conditions. The hazardous-duty provisions referred broadly to "an eligible employee" and "an employee of the Texas Youth Commission" without limiting eligibility to full-time staff, and the office applied the presumption that the Legislature intended no exception it did not write.

Is being eligible to accrue credit the same as being eligible to receive longevity pay?
No, and the opinion stressed the difference. Part-time and hourly employees could accrue service credit, but the statute conditioned actually receiving longevity pay on being a full-time employee.

Background and statutory framework

Subchapter D of Government Code chapter 659 provided longevity pay (four dollars per year of lifetime service credit, beginning after five years, with step increases at the 10th, 15th, 20th, and 25th years under section 659.044). Subchapter E provided hazardous-duty pay; section 659.062 set it at $7 a month per year of service for designated law-enforcement and security personnel, and section 659.063 (added by two 1995 bills) extended a capped, appropriations-limited version to Texas Youth Commission employees with routine direct contact with youth. Section 659.062(a) carried the proviso that hazardous-duty pay is "instead of . . . longevity pay," except as provided by subsection (c) or section 659.063(b)(1).

On the first question, the office relied on Attorney General Opinion JM-548 (1986), which read the "$7 a month for each year of service" language to mean an employee does not begin receiving hazardous-duty pay until after a year of hazardous-duty service. Because subsection (c) pauses longevity-credit accrual only "for the period in which the employee receives hazardous duty pay," and section 659.046 provides that an employee accrues lifetime service credit for the period in which the employee serves as a state employee, the office concluded the first-year employee keeps accruing credit.

On the second question, the office applied the canon that "[w]here the legislature makes no exception to the provisions of a statute, the presumption is that it intended no exceptions," citing Attorney General Opinion JM-407 (1985). Finding no full-time limitation in the text of sections 659.062 and 659.063, it concluded part-time and hourly employees were eligible for hazardous-duty pay, while noting that eligibility to receive longevity pay (as opposed to accruing service credit) was conditioned on full-time status under sections 659.043 and 659.046. The office did not resolve how to calculate the pay for part-time or hourly employees, or whether "standby" workers were employees.

Citations

Statutes and authorities discussed:

• Government Code chapter 659, subchapter D (longevity pay); sections 659.043, 659.044, 659.046
• Government Code chapter 659, subchapter E (hazardous duty pay); section 659.062 (including subsections (a), (c), (d)); section 659.063 (including subsection (b)(1))
• Attorney General Opinion JM-548 (1986) (employee not entitled to hazardous-duty pay until after a year of hazardous-duty service)
• Attorney General Opinion JM-407 (1985) (distinguishing eligibility to accrue longevity service time from eligibility to receive longevity pay; part-time employees)
• Attorney General Opinion H-44 (1975) (sick-leave benefits of part-time and hourly employees)

No cases were cited in this opinion.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0376
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0376.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

February 6, 1996

Mr. Steve Robinson
Executive Director
Texas Youth Commission
P.O. Box 4260
Austin, Texas 78765

Opinion No. DM-376

Re: Whether a Texas Youth Commission employee in a hazardous duty position but not receiving hazardous duty pay accrues service credits for purposes of longevity pay (RQ-746)

Dear Mr. Robinson:

You ask whether under the hazardous duty pay provisions of chapter 659, subchapter E, Government Code, "time in service continues to accrue for longevity pay purposes during the first year of a Texas Youth Commission employee's service in a hazardous duty position."

Subchapter D of chapter 659, Government Code, provides generally for longevity pay. A full-time state employee is generally entitled to receive "longevity pay" of four dollars for each "year of lifetime service credit," starting after five years of service.[1] Chapter 659, subchapter E, section 659.062, although not embracing Texas Youth Commission ("TYC") employees, provides that certain state law enforcement and security personnel are "entitled to hazardous duty pay of $7 a month for each year of service" in a hazardous duty position. The succeeding provisions, in section 659.063, specifically provide that TYC employees having routine direct contact with youth in commission facilities or under commission supervision "may receive hazardous duty pay in an amount that does not exceed the amount" authorized by section 659.062, subject to the conditions and limitations in the General Appropriations Act.[2][3] Section 659.062(a), however, adds the proviso that "[e]xcept as provided by Subsection (c) or Section 659.063(b)(1), this hazardous duty pay is instead of . . . longevity pay."

Subsection (c) of section 659.062 provides:

A state employee who has received longevity pay under Subchapter D for service in a position that does not require the performance of hazardous duty and who transfers to a position for which the employee is eligible to receive hazardous duty pay is entitled to continue to receive longevity pay for the years of service to the state performed in the prior position. The employee is not entitled to additional longevity pay for the period in which the employee receives hazardous duty pay, but that period is included in computing the employee's total years of service as an employee of the state. [Footnote omitted; emphasis added.]

The other referenced provision in the section 659.062(a) proviso is subsection (b)(1) of section 659.063, which provides that hazardous duty pay under section 659.063

is subject to the conditions and limitations in the General Appropriations Act, except that during periods when Texas Youth Commission employees do not receive the full amount of the hazardous duty pay for which they are eligible, they are entitled to receive longevity pay for the time accrued in a hazardous duty position, but only until hazardous duty payments resume.

Attorney General Opinion JM-548 (1986) concluded that, under the "unambiguous" language now in section 659.062(a), "entitled to hazardous duty pay of $7 a month for each year of service," an employee is not entitled to start receiving hazardous duty pay until after a year of service in a hazardous duty position. Your concern, again, is whether, during the first year in a hazardous duty position, when he is not yet eligible to receive hazardous duty pay, a commission employee accrues "lifetime service credit" for longevity pay purposes. In our opinion, such employee continues to accrue "lifetime service credit" for longevity pay purposes during his first year of hazardous duty service. The language of subsection (c), section 659.062, quoted above, indicates only that the accrual of service credit for longevity pay purposes stops "for the period in which the employee receives hazardous duty pay." (Emphasis added.) Similarly, the proviso in subsection (a) that "[e]xcept as provided by Subsection (c) or Section 659.063(b)(1), this hazardous duty pay is instead of . . . longevity pay" limits only longevity pay, not the accrual of "lifetime service credit" for longevity pay purposes.[4]

Therefore, in our opinion, as he is not actually "receiving" hazardous duty pay during his first year of service in a hazardous duty position, the employee continues to accrue "lifetime service credit" under the longevity provisions of subchapter D during that period. See id. §§ 659.044 (entitlement to receive four dollars longevity pay "for each year of lifetime service credit" beginning after five years of service), .046 ("employee accrues lifetime service credit for the period in which the employee . . . serves as a . . . state employee").[5]

You also ask "whether part-time and hourly [TYC] employees who work in hazardous duty positions are eligible to receive hazardous duty pay under" the provisions of sections 659.062 and 659.063. The provisions of sections 659.062 and 659.063 refer to "an eligible employee," "an employee of the state," "employees . . . eligible for hazardous duty pay," and "an employee of the Texas Youth Commission." Nowhere do these provisions limit the covered class of employees to full-time employees. "Where the legislature makes no exception to the provisions of a statute, the presumption is that it intended no exceptions." Attorney General Opinion JM-407 (1985) (eligibility of part-time employees to accrue service credit for longevity pay purposes under predecessor provisions of subchapter D). We conclude that subject to the other conditions of section 659.062, including the amendatory provisions specific to TYC employees, part-time and hourly, as well as full-time, TYC employees in hazardous duty positions are eligible to receive hazardous duty pay.[6][7]

[1] Payment of longevity pay begins after five years of service. The amount paid increases "when the 10th, 15th, 20th, and 25th years of lifetime service credit are accrued." Gov't Code § 659.044.

[2] We note that, even though "eligible" to receive hazardous duty pay under section 659.062, TYC employees performing hazardous duty are not, by virtue of the use of "may" and the conditioning of their receipt of such pay on limitations in the General Appropriations Act, "entitled" to it as the other personnel designated in the section appear to be.

[3] Section 659.063 was added by two separate bills in 1995. Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 91, 1995 Tex. Sess. Law Serv. 2517, 2586; Act of Apr. 25, 1995, 74th Leg., R.S., ch. 76, § 5.15, 1995 Tex. Sess. Law Serv. 458, 478. We refer however to the section as added by chapter 262 of the session laws, which was adopted later in time. In section 90 thereof, chapter 262, unlike chapter 76, also amended section 659.062(a), adding the proviso regarding section 659.063(b)(1) quoted below in the text. The language after "General Appropriations Act" in chapter 262's version of section 659.063(b)(1) is not included in the version of the section added by chapter 76.

[4] The provision of subsection (b)(1) of section 659.063 for the receipt of longevity pay by commission employees who "do not receive the full amount of hazardous duty pay for which they are eligible" does not bear on the time period you ask about, the first year of hazardous duty service, when the employee is not yet eligible to receive hazardous duty pay.

[5] Please note, however, that although under the conclusion we reach here, an employee transferring to a hazardous duty position is entitled to continue accruing lifetime service credits for longevity pay purposes so long as he does not actually receive hazardous duty pay, under subsection (c) of section 659.062 those lifetime service credits would not be included in determining the amount of longevity pay which he would be entitled to receive while in a hazardous duty position, such pay under subsection (c) being "for the years of service to the state performed in the prior position." (Emphasis added.) However, under subsection (b)(1) of section 659.063, which is specific to TYC employees, such employees are entitled to receive longevity pay for time accrued in a hazardous duty position while not actually receiving full hazardous duty pay "for which they are eligible." Although such employees would not be eligible under the provision to receive such longevity pay during their first year in a hazardous duty position, when they are not eligible to actually receive hazardous duty pay, they may, once eligible therefor but not actually receiving full hazardous duty pay, receive longevity pay based on their hazardous duty service including amounts attributable to the first year of such service when they are not actually receiving hazardous duty pay. See also Gov't Code § 659.062(d) (if hazardous duty employee transfers to nonhazardous position and stops receiving hazardous duty pay, he is then "entitled to longevity pay for each year of service . . . including the years of service in a position for which the employee was entitled to hazardous duty pay") (emphasis added).

[6] We note that you indicate that some of the "employees" in question are "stand-by." We cannot resolve the fact questions which would be involved in determining whether "standby" employees are in fact employees within the, presumably ordinary, meaning of the term as used in section 659.062. For purposes of this opinion, we take at face value your characterization of the individuals you ask about as "employees."

[7] We understand it has been argued that the language of subsection (a) of section 659.062, "hazardous duty pay is instead of other hazardous duty or longevity pay," indicates that one is not eligible to receive hazardous duty pay unless he had been eligible to receive longevity pay. The longevity pay provisions expressly condition eligibility to receive longevity pay (as distinct from eligibility to accrue service time for longevity pay purposes) on one's being a full-time employee. Gov't Code §§ 659.043, .046. See Attorney General Opinion JM-407 (1985) (distinguishing eligibility to accrue longevity service time from eligibility to receive longevity pay). We do not believe that an ordinary reading of the language in which "instead of" is used reasonably permits inferring a requirement that one have been eligible for longevity pay in order to receive hazardous duty pay. Moreover, even if these provisions were ambiguous, it is a "well settled" canon of construction that they should be construed in favor of the public employee. Id. Please note, however, that as you do not ask, we do not address how hazardous duty pay amounts due a part-time or hourly employee are to be calculated. See, e.g., Attorney General Opinion H-44 (1975) (sick leave benefits of part-time and hourly employees).

SUMMARY

A Texas Youth Commission employee holding a hazardous duty position is not eligible to receive hazardous duty pay during his first year in a hazardous duty position. Such employee continues to accrue "lifetime service credit" for longevity pay purposes during the first year in a hazardous duty position. Subject to the other conditions of Government Code sections 659.062 and 659.063, part-time and hourly, as well as full-time, Texas Youth Commission employees in hazardous duty positions are eligible to receive hazardous duty pay.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General