Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
December 1, 1980
MARK WHITE
Attorney General
Honorable James B. Adams Opinion No. m-282
Director
Texas Department of Public Safety Re: Whether a retiring employee
5805 N. Lamar Boulevard is entitled to be paid longevity or
P. 0. Box 4087 hazardous duty pay in addition to
Austin, Texas 78773 accumulated leave if he takes the
accumulated leave in a lump sum
Dear Mr. Adams:
You have requested our opinion as to whether a retiring employee is
entitled to receive longevity or hazardous duty pay when he is compensated
for his accrued leave in a lump sum.
Article 6813d, V.T.C.S., provides, in pertinent part:
. . .each state employee. . . is entitled to longevity
pay of a maximum,of $4 per month for each year of
service as an employee of the state tp to and
including 25 years of service.
Article 6252-20b, V.T.C.S., states, in pertinent part:
All commissioned law enforcement personnel of the
Department of Public Safety.. . are entitled to
hazardous duty pay of $5 a month for each year of
service in the respective agency, up to and including
30 years in service.
You indicate that it is possible for a retiring employee of the Department of
Public Safety to have accrued up to 336 hours vacation time for which ha is
entitled to be paid at the time of separation from employment. H.B. 558,
Acts 1979, 66th Leg., R.S., ch. 843, art. V, S7, at 2900-01. If the employee
were to remain cn the payroll while drawing 336 hours vacation time, he
would be entitled to be compensated for approximately two months of
longevity pay or for a similar amount of hazardous duty pay if he is a
commissioned officer. If the employee had 30 years of service, the monthly
bonus would amount to $50. You ask whether a retiring employee who
collects his vacation time payment in a lump sum is entitled to receive
longevity or hazardous duty pay for a period equal to the amount of his
accrued vacation time.
p. 902
Honorable James B. Adams - Page Two (Mw-282)
Longevity pay is available to an individual only as an “employee of the state.”
Likewise, only “commissioned law enforcement personnel of the Department of Public
Safety” may receive hazardous duty pay. The clear implication of both statutes is that
a person must be on the state payroll during a particular period in order to qualify for
a payment based lpcn that period. In Attorney General Opinion H-1096 (1977), this
office said:
It is well established that an employee’s unused vacation time
&es not extend his term of employment, and that payment for
accrued annual leave ‘has no significance in determining the
date ‘of separation from employment. Funderburk v. Metropoli-
tan Life Insurance Co., 146 So. 2d 710, 715 (La. Ct. App. 1962);
Wyatt v. Security Benefit Life Insurance Co., 283 P.2d 243, 246
7Kan. 1955). Sea Mutual Life Insurance Co. of New York v.
Presbyterian Hospital of Dallas, 503 S.W.2d 870, 874 (Tex. Civ.
App. -Dallas 1973, writ rePd n.r.e.).
An employee must be separated from state employment to be eligible for
payment of accrued vacation time in a lump sum. At the time of such separation, he
forfeits his eligibility for longevity and hazardous &ty pay. It is our opinion,
therefore, that a retiring employee is not entitled to receive longevity or hazardous
duty pay when he is compensated for his accrued leave in a lump sum. However, if ha
were to stay on the payroll and draw his vacation time, he would be entitled to receive
longevity or hazardous duty pay.
SUMMARY
A retiring employee is not entitled to receive longevity or
hazardous &rty pay when he is compensated for his accrued
leave in a lump sum.
n
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
p. 903
Honorable James B. Adams - Page Three (ml-282)
APPROVED:
OPINION COMMRTEE
Susan L. Garrison, Acting Chairman
Jon Bible
Rick Gilpin
Charles Palmer
Bruce Youngblood
p. 904