Do veterans get to keep their Texas state job over others in a layoff?

Plain-English summary

A veteran working for a Texas state agency gets a hiring preference under state law. The commissioner of the state mental health agency asked how that preference plays out the other direction, in a layoff (what the statute calls a reduction in workforce, or reduction in force). Does a veteran get to keep their job no matter what, ahead of every non-veteran? Or does the preference only matter when the agency is choosing between two employees who are otherwise about equal?

The Attorney General said the preference is not absolute. Section 657.007 of the Government Code, added by Senate Bill 646 in 1995, extends the veterans' hiring preference to job retention when an agency reduces its workforce, but the same section says the preference applies "only to the extent that a reduction in workforce by an employing public entity involves other employees of a similar type or classification." Reading that alongside the hiring-preference definition in section 657.003(a), which gives a veteran a preference over other applicants "who do not have a greater qualification," the office concluded the retention preference works the same way. It is a tie-breaker among similarly qualified and similarly situated employees, not a trump card. An agency does not have to keep a veteran on staff in place of a non-veteran who is more qualified for the position.

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 section 657.007 of the Government Code as it was enacted in 1995. The veterans' preference statutes have been amended since, and the specific section numbers and language may have changed. Treat the citations as historical; verify current law before relying on anything here.

What the opinion meant at the time

State agencies and their HR staff: Under the opinion, the veterans' retention preference in a layoff applied only when the reduction involved other employees of a similar type or classification, and only as a tie-breaker among similarly qualified, similarly situated employees. An agency was not required to retain a veteran over a more qualified non-veteran.

Veteran state employees: The opinion read the retention preference to protect a veteran only relative to similarly qualified peers, not absolutely. A veteran could still be laid off if a non-veteran competing for retention was more qualified.

Common questions

Did a veteran automatically keep their state job in a layoff?
No. The opinion held the preference in section 657.007 was not absolute.

When did the preference actually apply?
Only when the layoff involved other employees of a similar type or classification, and then only as a tie-breaker among similarly qualified and similarly situated employees.

Could a veteran be laid off while a non-veteran kept a job?
Yes, if the non-veteran was more qualified. The opinion said the preference did not require retaining a veteran in place of a more qualified employee who is not a veteran.

Why did the AG read the retention preference the same as the hiring preference?
Because nothing in the language or legislative history of section 657.007 suggested the retention preference was meant to be stronger than the hiring preference. The hiring preference in section 657.003(a) is expressly limited to applicants who "do not have a greater qualification," and the office read the two provisions together (in pari materia).

Background and statutory framework

Section 657.007 of the Government Code was added by Senate Bill 646, enacted in 1995. According to the bill analysis, the general purpose of Senate Bill 646 was to require public entities and the Texas Veterans Commission to report the percentage of employees they hire who are entitled to veterans' employment preferences. Within that bill, section 657.007 addressed retention. Subsection (a) provides that an individual entitled to a hiring preference under the chapter is also entitled to a preference in retaining employment if the public entity reduces its workforce. Subsection (b) limits that preference, stating it applies only to the extent the reduction involves other employees of a similar type or classification.

The Attorney General read section 657.007 together with section 657.003(a), which defines the hiring preference as a preference "over other applicants for the same position who do not have a greater qualification." Because there was no reason to think the Legislature meant the retention preference to be broader than the hiring preference, and nothing in the text or history signaled such an intent, the office concluded the preference is considered only when selecting among similarly qualified and similarly situated employees.

Citations

Statutes and session law:

• Gov't Code § 657.007 (veterans' retention preference in a reduction in workforce; subsections (a), (b))
• Gov't Code § 657.003(a) (definition of the veterans' hiring preference)
• Act of May 27, 1995, 74th Leg., R.S., ch. 854, 1995 Tex. Gen. Laws 4287, 4288 (Senate Bill 646)

Also referenced: House Committee on State Affairs, Bill Analysis, S.B. 646, 74th Leg. (1995).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0422
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0422.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

November 6, 1996

Mr. Don Gilbert
Commissioner
Texas Department of Mental Health and Mental Retardation
P.O. Box 12668
Austin, Texas 78711-2668

Opinion No. DM-422

Re: Applicability of Senate Bill 646, Act of May 27, 1995, 74th Leg., R.S., ch. 854, 1995 Tex. Gen. Laws 4287, 4288, which relates to veterans' employment preference (RQ-856)

Dear Commissioner Gilbert:

You ask what preference a state employee who is a veteran has, pursuant to section 657.007 of the Government Code, in the event of a reduction in force ("RIF") in the employing agency. Specifically, you seek to know whether such an employee has an absolute preference over other employees in a RIF, or whether his or her veteran status is to be considered only when choosing between or among otherwise similarly qualified employees.

Section 657.007 of the Government Code was added as part of Senate Bill 646, Act of May 27, 1995, 74th Leg., R.S., ch. 854, 1995 Tex. Gen. Laws 4287, 4288. The general purpose of Senate Bill 646, according to the bill analysis, was to require "public entities and the Texas Veterans Commission to file a report stating the percentage of employees hired by the entity who are entitled to veterans' employment preferences." House Comm. on State Affairs, Bill Analysis, S.B. 646, 74th Leg. (1995).

Section 657.007, with which you are particularly concerned, provides as follows:

 (a) An individual entitled to a hiring preference under this chapter is also entitled to a preference in retaining employment if the public entity that employs the individual reduces its workforce.

 (b) The preference granted under this section applies only to the extent that a reduction in workforce by an employing public entity involves other employees of a similar type or classification. [Emphasis added.]

In our view, the language emphasized above makes plain that the preference established by section 657.007 is by no means an absolute one. This view moreover is reinforced by reading this section in pari materia with section 657.003(a) of the Government Code, which defines the preference in employment as follows:

 An individual who qualifies for a veteran's employment preference is entitled to a preference . . . over other applicants for the same position who do not have a greater qualification.

There is no reason to assume that the preference available for retention purposes is greater than that for hiring purposes. Nothing in the language or legislative history of section 657.007 indicates an intent to modify the nature of the preference. Accordingly, the preference is to be taken into consideration when selecting among similarly qualified and similarly situated employees, and does not require the retention of a veteran in place of a more qualified employee who is not a veteran.

                           SUMMARY

      The preference for veterans in a reduction in workforce mandated by section 657.007 of the Government Code is not absolute. Veterans are to be preferred when selecting among similarly qualified and similarly situated employees, but are not entitled to preference over more qualified employees who are not veterans.

                                                  DAN MORALES
                                                  Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by James E. Tomtelott
Assistant Attorney General