The Court of Appeals of Texas addressed what it described as an issue of first impression under the Uniformed Services Employment and Reemployment Rights Act (USERRA): whether a service member whose military-related disability is discovered after returning to work may invoke USERRA’s reemployment provisions a second time. Le Roy Torres, a Texas Department of Public Safety (DPS) state trooper and member of the United States Army Reserves, was deployed to Iraq in November 2007. On that deployment, he was exposed to toxic burn pits, “a method of garbage disposal that sets open fire to all manner of trash, human waste, and military equipment.” DPS promptly reemployed Torres as a state trooper when he returned from military service in February 2009. Nearly two years later, he was diagnosed with constrictive bronchiolitis, a permanent lung disease and “serious disability known to be caused by toxic fumes like those Torres encountered at the burn pits in Iraq.”
In January 2011, Torres requested accommodation for his disability. DPS assigned him to a temporary modified-duty position performing data entry at full trooper pay and later transferred him to the Driver License Office in that temporary capacity. In October 2011, Torres sought permanent accommodation and specifically requested a permanent transfer to the Driver License Office. His captain recommended approving the request and allowing Torres to remain in the modified-duty assignment until the transfer occurred. However, DPS’s human resources department “never finalized Torres’s October 2011 request for a permanent transfer — in fact never even responded to it — before Torres resigned almost a year later in August 2012.”
Torres sued DPS under USERRA, asserting that USERRA creates two distinct causes of action. USERRA § 4311 prohibits discrimination against service members with respect to employment, while §§ 4312 and 4313 govern an employer’s obligation to “promptly reemploy” returning service members in the position they would have attained absent military service. Although Torres initially asserted both claims, he abandoned the discrimination claim before trial and proceeded solely under the reemployment provision. The jury found that DPS failed to make reasonable efforts to accommodate Torres’s service-related disability after his October 2011 request and awarded him more than two million dollars in lost wages and benefits. The trial court entered judgment on the verdict and also awarded more than one million dollars in attorney’s fees.
The Court of Appeals reversed, concluding that the trial court instructed the jury on an invalid theory of liability because USERRA’s reemployment provisions did not apply under these circumstances.
The Court explained that USERRA’s reemployment provisions are designed to ensure that a returning service member is restored to the civilian position he or she would have occupied had military service not interrupted employment. This is known as the employee’s “escalator position.” If a returning service member has a service-related disability, the employer must make reasonable efforts to qualify the employee for that position. If, after those efforts, the employee cannot perform the escalator position, the employer must instead place the employee in another position with equivalent “seniority, status, and pay,” or, if no such position is available, “the nearest approximation” of that position. The Court emphasized, however, that these obligations arise during the initial reemployment process. The Court anchored its reasoning in the statutory text’s reference to the moment of reemployment: Section 4313 provides that “a person entitled to reemployment” after military service “shall be promptly reemployed.” The Court noted that the statute “says nothing about latent disabilities” or matters that arise after an individual is “promptly reemployed.”
Relying on decisions from the Fourth and Sixth Circuits, as well as the Supreme Court of Virginia, the Court concluded that §§ 4312 and 4313 protect service members only when they return to civilian employment after military service. As the Sixth Circuit explained, those provisions protect service members “at the instant of seeking reemployment,” while the discrimination provisions govern employment actions occurring after reemployment has occurred. The Court found particularly persuasive Butts v. Prince William County School Board, 844 F.3d 424 (4th Cir. 2016), in which the Fourth Circuit held that an employer’s duty to accommodate under § 4313 applies only if the employer knows of the employee’s service-related disability at the time of reemployment. It likewise relied on Huff v. Winston, 292 Va. 426, 790 S.E.2d 560 (2016), in which the Supreme Court of Virginia held that §§ 4312 and 4313 “only appl[y] to the structuring of the appropriate reemployment position” occurring during “the act of rehiring.”
Torres argued that commentary in the Department of Labor’s preamble to a related regulation supported a different result. The commentary states that if a service-related disability “is discovered after the service member resumes work and it interferes with his or her job performance, then the reinstatement process should be restarted under USERRA’s disability provisions.” The Court declined to follow that commentary. It explained that because the language appears only in the regulation’s preamble, and not the text itself, it “lacks the force and effect of law.” Because the regulation itself was not “genuinely ambiguous,” the Court declined to defer to the Department’s commentary as an interpretation of that language.
Applying those principles, the Court concluded that DPS satisfied its reemployment obligations by promptly restoring Torres to his state trooper position in 2009. It was undisputed that DPS had no notice of Torres’s disability at the time of his reemployment and that Torres did not claim he was unable to perform the duties of a state trooper when he returned from military service. Because his disability was not diagnosed until nearly two years later, the Court held that his sole potential remedy for DPS’s subsequent actions would have been under USERRA’s discrimination provision, § 4311 — a claim Torres had expressly abandoned before trial.
The Court therefore reversed the judgment. In light of the novel legal issues presented, however, the Court declined to order that judgment be entered for DPS, and instead remanded the case “in the interest of justice” for further proceedings on any remaining issues.
Texas Department of Public Safety v. Torres, No. 15-24-00089-CV, 2026 WL 1251046 (Tex. App. May 7, 2026).
This article appears in the October 2026 issue of our monthly newsletter, Public Safety Labor News.
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