You have requested our opinion regarding an employee terminated

employee was drawing sick leave. In General Opinion MW-247 4524 Alberla 91- El Paw. lx. Ave. suite ^{[79905] [150]} sum &d compensation for that portion of his accrued sick leave vhich the time of his discharge. remained unused at entitled to be paid a lump not (198O)b. we said that this employee was The pertinent provisions regarding sick leave in effect at the 1220 DalIa AVO, SullO zoz tima the aforesaid employee was terminated were found in the Noueton. TX. 77002 Appropriations Act for the 1970-1979 biennium at page V-32. See Acts 71- 1977, 65th Leg. ch. 072 at 2699, 3146. They read in part: w5 Brosdw*y, suits 312 b. Employees of the State shall, without Lubhock,Tx. 79401 deduction in salary, be entitled to sick’ leave eml747-522a subject to the following conditions: 4309 N. Tenth. Suite 8 An employee will eata sick leave entitlement McAlleq TX. 78.501 beginning on the first day df employment vith the 512a82a7 State and terminating on the last day of duty. Sick leave entitlement shall be earned at the

200 Mein Piaza, SUIC UK) !%n Antonio. TX. 78205 rate of eight (8) hours for each month or fraction 51212254191 of a month empl&ant. and shall accumulate with the unused amount of such leave carried forward each month. Sick leave accrual shall terminate on the last day of duty.

Sick leave with pay may be taken when sickness, injury. or pregnancy and confinement prevent. the employee's performance 06 duty or when a member of his immediate family is actually ill. An employee who must be absent from duty because of illness shall notify his supervisor or cause *2 him to be notified of that fact at the earliest practicable time. (Emphasis added). Under the provisions of the Appropriations Act, in our opinion, if an employee is not prevented by illness from performing his duty at the time he is terminated, the right to use accumulated sick leave never accNes and the termination of employment extinguishes the contingent right. See Attorney Ganeral Opinion MW-247 (19&O). Cf. City of Aouaton v. Caldwell. 582 S.W.Zd 494 (Tex. Civ. App. - Beaumont 1979, no writ); Patton v. Governing Board of San Jacinto School District, 143 Cal. Rptr. 593 (Cal. App. 4th. 1978). Even if 8 state employee is genuinely ill and using accumulated sick leave, we do not think he is iarnune from involuntary termination and removal from the payroll. But if he is terminated after his right to use his accumulated sick leave has accrued. the employing agency remains liable for the value of the accrued but not-yet-exhausted leave time (or the portion applicable. depending on the duration of the illness). See Vangilder v. City of Jackson. 492 S.W.2d 15 (Ho. App. - St. Louis 1973). Cf. Rduc. Code 113.905 (termination of school employees on diaabilit~eave); Attorney General Opinion R-352 (1974).

Turning to your specific question , we advise that if an ill state employee subject to the General Appropriations Act for fiscal years 1978-1979 is involuntarily terminated while on recommended extended sick leave ,for a bona fide illness that prevents him from performing his duty, he.16 entitled to be paid for his accrued. unexhausted sick leave time or, should the duration of the illness not exceed the unexhausted time. for the portion applicable. In Attorney General Opinion m-247 (1980). the word eaCCNede is used in a coloquial. non-technical sense. Cf. Attorney General Opinion U-1075 (1972) (vacation benefits accrua. Rovever. it otherwise correctly states the general ~rule applicable to state employees terminated at a time when the right to use accumulated sick leave entitlement has not vested and we reaffirm it. A different question is presented here.

SUl4MARY An ill state employee subject to the General Appropriations Act for fiscal years 1978-1979 who is involuntarily terminated while on recommended extended sick leave for a bona fide illness that prevents him from performing his duty is entitled to be paid for his accrued. unexhausted sick leave time or, should the duration of the .illnesa not exceed the unexhausted time. for the portion applicable.

=Q

MARK WHITE Attorney General of Texas JOHN W. FAINlZRr JR. First Aaeistant Attorney General

RICRARD E. GRAY III

Executive Assistant General

Prepared by BNCS Youngblood

Assistant Attorney General

APPROVED:

OPINION CoHnIlTRE

Susan L. Garrison, Chairman

Jon Bible

BNce Youngblood