Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 14,2004
Mr. John A. Wells Opinion No. GA-0201
Executive Director
Texas Military Facilities Commission Re: Whether the Texas Military Facilities
2200 West 35th Street, Building 64 Commission may make a lump sum payment
Austin, Texas 78703-1222 for accumulated sick leave to an individual
whose state employment has been terminated
(RQ-0149-GA)
Dear Mr. Wells:
You ask whether the Texas Military Facilities Commission (the “Commission”) may make
a lump sum payment for accumulated sick leave to an individual whose employment has been
terminated.’
You indicate that the individual was terminated on February 28,2003, at which time he had
accrued approximately 35 1 hours of sick leave. See Request Letter, supra note 1, at 1. You suggest
that two prior opinions of this office might permit the Commission to pay the employee for his
accrued sick leave.*
In Attorney General Opinion MW-427, this office said that “an ill state employee subject to
the General Appropriations Act for fiscal years 1978-1979 [who] is involuntarily terrninated 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 illness not exceed the unexhausted time, for the portion applicable.” Tex. Att’y Gen. Op. No.
MW-427 (1982) at 2. Subsequently, in Attorney General Opinion JM-956, the attorney general
concluded that “a state employee who has completed his final day of duty with an agency but who
remains on the payroll to expend his accrued vacation time may use sick leave for his own bona fide
illness or for the illness of a member of his immediate family.” Tex. Att’y Gen. Op. No. JM-956
‘See Letter from Mr. John A. Wells, Executive Director, Texas Military Facilities Commission, to Honorable
Greg Abbott, Texas Attorney General (Dec. 17, 2003) ( on file with Opinion Committee, also available at http://
www.oag.state.tx.us) [hereinafter Request Letter].
‘See Letter from Mr. John A. Wells, Executive Director, Texas Military Facilities Commission, to Honorable
Greg Abbott, Texas Attorney General (Jan. 7, 2004) ( on file with Opinion Committee, also available at http://
www.oag.state.tx.us) (clarifying information in Request Letter).
Mr. John A. Wells - Page 2 (GA-0201)
(1988) at 5. These opinions, however, were issued at a time when most of the sick leave provisions
applicable to state employees were included within the General Appropriations Act.3 In 1993, those
provisions were transferred to chapter 661 of the Government Code.4
Nothing in chapter 661 or elsewhere allows a living employee or former employee to be paid
for accrued sick leave. Subchapter G of chapter 661 contains “general provisions for sick leave for
state employees. ” TEX. GOV’T CODE ANN. $0 661.201-.206 (Vernon Supp. 2004) (subchapter G).
Section 661.202 describes general provisions and procedures relating to sick leave entitlement for
state employees. See id. 5 661.202. Section 661.204 permits an employee “who transfers directly
from one state agency to another” to retain “the unused balance of the employee’s accumulated sick
leave.” Id. 3 661.204. Section 661.205 provides for restoration of a state employee’s sick leave
balance under particular circumstances. See id. § 661.205. Section 661.033 of subchapter B
provides that “[wlhen a state employee dies, the state shall pay the employee’s estate for the balance
of the employee’s: (1) vacation leave; and (2) sick leave. ” Id. 9 661.033(a). Payment in such case
is subject to limits set by the General Appropriations Act. See id. 8 661.033(b). In any case,
payment to the estate for a deceased employee’s accrued sick leave is restricted to “one-half of
the state employee’s accumulated sick leave or 336 hours of sick leave, whichever is less.” Id.
9 661.033(c).
By contrast, subchapter C of chapter 661 provides that any state employee who has accrued
six months of continuous state employment
and who resigns, is dismissed, or otherwise separates from state employment by a
state agency other than an institution of higher education is entitled to be paid for the
accrued balance of the employee’s vacation time as of the date of separation, if the
individual is not reemployed by the state in a position under which the employee
accrues vacation leave during the 30-day period immediately following the date of
separation from state employment.
Id. 0 661.062(a). Moreover, section 661.091 of subchapter D authorizes a lump sum payment for
accrued vacation leave for an employee who retires. See id. $ 661.091(a) (Vernon 1994). In our
opinion, the express statutory authorization for payment of accrued vacation leave to a state
employee whose employment is terminated, together with the absence of any such authorization for
payment of accrued sick leave, indicates that the legislature does not intend for a living state
employee who separates from employment to be paid for his or her accrued sick leave.
3See Tex. Att’y Gen. Op. Nos. JM-956 (1988) at l-3 (citing General Appropriations Act, 70th Leg., 2d C.S.,
ch. 78, art. V, $0 8a-c, 1987 Tex. Gen. Laws 253,825-26), MW-427 (1982) at 1-2 (quoting General Appropriations Act,
65thLeg., R.S., ch. 872, art. V, 9 b, 1977 Tex. Gen. Laws 2699,3146), .seealsoActofApr.30, 1969,61stLeg.,R.S.,
ch. 2 17, §§ I-4, 1969 Tex. Gen. Laws 633,634 (relating to payment of accumulated vacation and sick leave to estates)
(amended 1991,1993,1999) ( current version at TEX.GOV’TCODEANN. g-661.033 (Vernon Supp. 2004)).
4SeeActofMay4, 1993,73dLeg.,R.S.,ch.268,§ 1,secs. 661.001-.121, 1993Tex.Gen.Laws583,711-17
(“nonsubstantive revision of statutes relating to . . . public officers and employees, and fiscal affairs”).
Mr. John A. Wells - Page 3 (GA-0201)
In addition, section 66 1.15 1, which is included within subchapter F of chapter 161 of the
Government Code, provides that “[tlhe state auditor shall provide a uniform interpretation of this
subchapter and subchapters G and 2. ” Id. 5 661.151(a) (Vernon Supp. 2004). A recent letter from
Tony Garrant; Acting State Classification Officer in the State Auditor’s Office, declares that
[a]fter reviewing the request and current law, we have determined that no authority
presently exists for the Texas Military Facilities Commission to make a lump-sum
payment for accumulated sick leave to an employee, whether or not he has been
terminated. State law is clear that the only time that the state may pay for an
employee’s accumulated, but unused sick leave is by payment to the employee’s
estate upon his death.5
We conclude that the Texas Military Facilities Commission is not authorized to make a lump
sum payment for accumulated sick leave to an individual whose state employment has been
terminated.
‘Letter from Tony Garrant, Acting State Classification Offker, State Auditor’s Offlice, to Honorable Greg
Abbott, Texas Attorney General (Jan. 26,2004) (on file with Opinion Committee).
Mr. John A. Wells - Page 4 (GA-0201)
SUMMARY
The Texas Military Facilities Comrnission is not authorized
to make a lump sum payment for accumulated sick leave to an
individual whose employment has been terminated.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee