Case Information

*1 October 12, 1973

Honorable Rbb&t~S. ~Caiv&t ~Op@ibn No. H-126 Comptroller of Public Accountr WI-+&her Houec Bill 139.

State Taxae.: Re: Atietin. ‘78774 ’ 63rd Leg., authbrisei

“payment of acciued vaca- tion pay to an employee who reparatee ie l eparkted from tate

Dear Mr: C’veit:~~ ,&mployment

You~have reqdirted our &pinion tion&nizig the iighte of employee8 separated from, state. em@loyment to b@ paid for accrued vacation time, under House Bill 139, ofithe 63rd Legialature, The General Appropriations fiecal~yeare ~1974 and 1975.

Your mpecifi’c question aeke:

“Can thi~e department legally pay’ dn.itiployee for vacation time duly accrued on the date he aepar- ater for any unured vacation &titlement undei’*e .current Appropriation Bill?” Exc’~~~‘f~r’iirticle;‘bZSi-8i.~ V.T. C. S., which appiie.e to’ vication ti& ac&uxi&itad at tl&+at~‘of a ‘et&e employde. there ii non general law .provLdicg fi$$ $?+~.ohtim~ ~foi all state employeer. Article ‘6252-8. V.T.CS, givee to hotirly etiplo$eer, continuously emiloytid’by the State for 6 months more, whatever Mcition rights may be granted to konthly employees.

Whatever’vacatioti iighte do exiet arc,found’in Article V of the various acts. Prior to fircal 1973, there wae no authority em- ployee to be paid a lump rum accrued vacation bti the termination d hie it wao uggeeted “’ employment, in Attorney~General Opinion M-1075 that o r l eparatione "all reeignation#,dirmierale State employment murt be *2 Honorable Robert S. Calvert, page 2,(H-126) effective on a date which will permit the employee to : accomplirhed hir accumulated vacation. It Although that opinion and Attorney General Opinion No. 1252 (1972) as well, apeak of the right to accrued vacation time as @kernted, ” we do believe it ie vemtkd in the urual sense of that word. Rather, we are of the opinion that the right to accrued vacation time ia analogour to the right to retirement benefit@ under one of the several plans authorized by the various legirlaturea. Am to theme, the Supreme Court bar raid:

“In our opinion, the that the right of a penrioner to receive monthly payment0 from the fund after retirement service, or peaiion after his right to participate in the fund ha8 accrued, ir predicated upon the anticipated corLinuance of lawn, ie auborainate existing to the right of the Legirlkure abolish the pension eyetern, dimi- nish the accrued benefitr of pensioner6 theretinder.

1~ undoubtedly the mound rule to be adopted. ” City of Dallaa v. Trammell, 101 S. W. 2d 1009, 1013 (Tex. 1937); and see Board of Managers of Harris County Hoop. Dief:.v~.Penaicin:Board. 449 S. W. td 33 (Tex. 1970).

The ,right# of an employee to .be paid for accrued vacation’:timc must depend, therefore, upon the state of the law at the time of hia eeparation Aa permom who die while employed by the from state employment.

State, the right* their eatat& determined~by Article 6252-8a, V.T.CS On the other hand, except insofar aa Article 6813b, V. T. C. S., makes the salary prov$aions of the bieonial appropriationa acta the general law, there im no over-all rtatute~providing for vacation time for living employees.

In the Appropriation Acefor fiscrl’l972 (Senate Bill II, Regular Ses- sion, 62nd Legimlature), it was provided in Article V, 0 7 (p. V-35) that, “No employee of the State shall.be granted terminal annual vacation leave subsequent to the effective day of the employee’s resignation, dis- State employment. missal, or separation I’ Attorney Gemrrl Opinion

p. 610

The Honorable Robert S. Calvert, page 3 (H-126)

M-1075 (1972),found this language to be unambiguous and uggented, as we have quoted above, ‘that the effective date of the termination be post- poned until a time sufficient to include the accruid vacation.

The Approprtation Act for fiscal 1973 (Senate Bill~~l,~ 3rd ‘Called in $ 7,,~at p. ,V-34, “A State em- Seseioa, 62nd Legislature), provided ~@lbyee who resigni,’ his’ dirmiraed, separrtes fro& State employment shall entitled be for ill vacition time duly accrued. I’ (imphasis added) This proviiion wan the rubject of Attorney General Opinions M-1252, M-1279, M-1280, M-12@ (1972). . Opinion ‘1252 ~held that because of the language. “shall be entitle’d fo~~be paid, ‘I a State einployec who was separated and had nbt been.Zully paid~ for all vacation time to whiclitie _~ ., .was entitled, had tiot been fully paid’for ~a11 iervices ,rendered land was

entitled to reCeive :any balance due him’tipdn~termination af his employment.

The 63rd Legislature, in~the Genera Appropriations Act for fiscal 1974 and 1975, again rewrote 5 7 of Article V and the pertinent language is now. “A States employee who with Eeference to accrued vacation timg rcsigne, is dis&&sid. or scpa+Btdd from Sta%C. employment shall be en- ,. titled to all vacation time duly.ticcrued. ” There is n6 provision there or eleewhere in the Abpropriatibn Act tir’thc penerrl’stitutes of the State that an employee. upon eparation, shall ‘be paid for ,a’ccrued time. of Article V. 5 7. we not at liberty

In construing thC”imgtiie arsume that the worde “to be paid” were omitted through inadvertance. To the iontiary., we must astnune that they were ititentionally omitted and that something in the history the application of the 1973 caueed to change -its mind. tbe Legidatur~ your office may not iraue warrants for an

It is the general item which there has been no appropriation. National,Bircuit Co. v. Sclte, 135 S. W. 2d 687 (Tex. 1940); State v. Angelins County. 150 S. W. td 379 (Tex. 1941); Bullock v. Calvert, 480 S. W. 2d 367 (Tex. 1972). This is true even though an expenditure,;,may be exprer~sly:called for by a general law. See, imtance. Attorney General Opinion C-579 (1966) hblding tht, even though the general law provided for fees for certain witnesses, ln the’ thoee feea, they could be paid. absence of

s . *4 Honorible Robert S. Calvert, page 4 (H-126) Am we construe the current wording 5 7, it now provides that an employwe is entitled to ?ime, ” not pay, and, in any event, no funds are appropriated pay a petson who is-no longer an employee for accrued vacation time.

We of the opinion, therefore. that the office of the Comptroller of (except in camem of death) may not legally pay an employee, Public Accounts under the current Appropriations Act. unused vacation time duly accrued on the date he separates from’state employment. Apparently the Legisla- ture intended that vacation time be used for vacations, and’not to supplement income. The change in the ‘law, as we interpret it, should encourage emplby- If ,ic. hot pfictic*l. ees to take their vacations ‘aa they accrue. sqwwd0n ihpul&be effective :b~Cr dit&‘,whicb,wiU psrxtiit tht e+ploy.e:e tb,Tm~rirf hts :“; ic&iiiulated vacation. time prior to him separation.

SUMMARY There’im neither any general law nor any appro- priationin the Approprtrtion for 1974-1975 autho-

rizing the payment of money to a state employee who

iemigns, is dimmiased otherwise separates from in casem’of death) in lieu of (except accrued but ynusecj vacation time.

‘APPROV$D:

DAVID M. KENDALL, Chairman

Opinion Committee