Untitled Texas Attorney General Opinion ( 1972 )

Honorable Robert S. Calvert Opinion No. M-1252 Comptroller of Public Accounts State Finance Building Re: Must a State employee who Austin, Texas 78701 resigns, is dismissed, or is separated from State employment be paid for all duly accrued vacation time, Dear Mr. Calvert: and related questions. Your request for an opinion reads as follows: "I hereby request your official opinion in answer to the following questions: "1 . Must a State employee who resigns, is dismissed, or separated from State employment be paid for all duly accrued vacation time? "a. If the above answer is in the affirma- tive, when should the payment be made? "2. Must the salary of a line-item employee be paid solely from a line-item appropriation or may he be paid in whole or in part from monies which the Legislature has prohibited in whole or in part to be paid for salary or wages? "a. Sec. 10. LIMITATIONS ON USE OP OTHER EXPENSE FUNDS FOR PAYING SALARIES AND WAGES. Funds appropriated in Articles I, II, and III of this Act, or for the Central Education Agency in Article IV of this Act, in items designated for consumable supplies and materials, current and recurring operating expense or capital outlay shall be ex- pended only for items set out in the Comptroller's Manual of Accounts, Expenditure Classification, effective Xovember 1, 1965, as amended, and num- bered from i0 CO 19 for 'consumable su;?lies and Lmater;dlS,' 2C rl?zoug!:25 for 'currerit and recurring operating expense,' and 60 to 69 for 'capital -6125- _ * . . Hon. Robert S. Calvert, page 2 '(M-1252) outlay,' It is further provided that such terms shall not include expenditures for personal services including salaries and wages, unless the language of those items explicitly authorizen such use." Article 6252-8a, Vernon's Civil Statutes, provides in part: "Sec. 2. Upon the death of a state employee, the state shall pay his estate for ali of the em- ployee's accumulated vacation leave and for one- half of his accumulated sick leave. The payment shall be calculated at the rate of compensation being paid the employee at the time of his death. "Sec. 3. Funds appropriated for salaries to the department or agency for which the employee worked shall be used in making payments provided for by this Act.” Section 7 of Article V of the current General Appropriation Act provides in part at page V-34: "If a State employee transfers directly from one State agency to another, he shall be entitled to credit with the newly employing agency for his accumulated but unused vacation entitlement, provided that his employment with the State i8 uninterrupted. A State employee who remions& is dismissed, or separate6 from State employment shall be entitled to be paid for all vacation time duly accrued." (Rmphasie added.) The underlined portion of the above quoted rider did not appear in the General Appropriation Act beginning September 1, 1971; instead it was provided: "If a State employee transfers directly from one State agency to another, he shall be entitled to credit with the newly employing agency for his accumulated but unused vacation entitlement, pro- vided that his employment with the State is un- interrupted. NC empioyee of the State shall be craritec term;nal annsal or vacation leave sub- seauent to the effective day of the employee's -6126- Hon. Robert S. Calvert, page 3 (M-1252) resignation, dismissal, or separation from State employment." (Emphasis added.) Accrued vacation entitlement is a vested right of State employees and of their estates. Attorney General's Opinion M-1075 (1972) and authorities cited therein. It is now specifically provided that a State employee who resigns, is dismissed or separates from State employment "shall be entitled to be paid" for all vacation time duly accrued. There- fore it is our opinion that an individual who is no longer on a State payroll has not been fully paid all the compensation for services rendered the State that he is legally entitled to untii such individual has been paid for all vacation time which has accrued to such individual. In answer to your first question you are therefore ad- vised that a State employee who resigns, is dismissed or separated from State employment must be paid for all duly accrued vacation time. Such payment is due and payable on the date the State em- ployee resigns, is dismissed, or is separated from State employment, which should be submitted on the monthly payroll for the month in which the separation will occur; i.e., employment terminated midnight December 31st, payment is submitted on the December pay- roll. Article 6813b, Vernon's Civil Statutes, provides in part: "From and after the effective date of this Act, all salaries of all State officers and State employees, including the salaries paid any in- dividual out of the General Revenue Fund, shall be in such sums or amounts as may be provided for by the Legislature in the biennial Appropriations Act. . . ." Since payment for all duly accrued vacation time is payment for services rendered, it is our opinion that such payment consti- t'utes salaries within the meaning of Article 6813b. Therefore suck payment may only be made from funds made available for expenditure by the Legislature in the Appropriations Act for salaries; i.e., Attorney General Department appropriation, payment for accrued va- cz::cn for Assistant Attorney General, may be paid from Item 6 or .;t- rczr,ey General 's Operating Fund of the current Appropriations Bill. Er.zlo:,eesfor .whom line item appropriations are made may be paid f;r 6: -,.-..l-- vacation time from other salary funds. You are accoi-+..~-- --.,--ii-e; vi; q-3 _, -i;2;- . - . . lion.Robert S. Calvert, page 4 (M-1252) advised that such payment is subject to the limitation provided in Section 10 of Article V of the current General Appropriations Act relating to limitations on use of other expense funds for paying salaries and wages quoted in your request. SUMMARY A State employee who resigns, is dismissed, or separated from State employment must be paid for all duly accrued vacation time and such pay- ment may be made from any appropriated funds available for the payment of salaries or wages. ORD C. MARTIN General of Texas Prepared by John Reeves Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Marvin Sentell James Quick Bob Gauss Bob Flowers SAMUEL D. MCDANIEL Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant -6128-