Untitled Texas Attorney General Opinion ( 1946 )

j OFFICE OF THE AlTORNEY GENERAL OF TEXAS j AUSTIN GROVER SELLERS Avr8111wGENIAL llonorablc John II. Shook Crlmlnal District Attorney Bexar County Son Antonio, Texas Dear Mr. Shook: Opltllon RO* O-7461 We hate four the aonstructlaa oi Article 23726, leraoa' Civil Statutes, with respect to the ahot et-1 8s fol]owBt f P. E. Dlcklnon, t, Texas, reda- tember, 1946, to the Aderaor-Collector nd during the last twelve r, went to work with the City of Ssa first day of September, and ras em- e period from September 1st through 'atTBsrIOR: Can this employee be paid for the period from September 1st to Scp- teaber 15th by the Assessor-Col- leator of Bexar County, Texas? *By way of brief, YOU 8re referred to Article 2372g of the Revised Clrll Statute. of the State oi Texas, and your attention is dlreated p8rtlanlarl~ amarable John R. Sbcc! - pare 2 I.43 _ to Section 3 thereof. Tour attention Is also dl- rooted to Article 16, Section 40, Of the Constitu- tion. .so far as we hate been able ta MI‘:!, the question of abether or not 8 party ray be pald for vacation t.iwebf the Count.7 while working for an- other po?ltiaal subdirision has not been Ozsued on since Artfcle 2372~ was passed by t.he ?eelslature.* TON call our attept.lon to Article 23?2~, Vernon’s C~:?fflcation of the Clrjl Statutes, helng H. Ii. Xo. 77, ch. 58. of-the Acts of the 49th Texidature at its neizular Fesdnn. t?ection 3 nf t.hatArticle is as f~11 os~st "The Coiwissloaere Courts 5~8~ ffnnt racatlons to errvlopees in the actual emOlop of 4~ch counties not exaeedinE fourteen (14) days in anp calendar year .znd, when such vacatlelrn are erznted, aI7 en- rloyees In actual emylapevt of such c~untjes sha'll be cnmnensated for such vacatlm, time as If actual service were helvc rendered under thejr emnlopent. It bein? t.he purpose nf thjs Act to want reesonahle vacation time durlnr each oalmdar year For employ- ees In the aouvties embraced within thjs Act.’ Berar County PalYs Utt?in the class c\f counties thus enhraced. IOU alse cite Section 40 of Article XVI of the State Ccnstltutlon. That Eeotlon Insofar au wertjnent In as follower "FO person shall hold or exerol se, 8 t t,he sar?e tine, more tbsn dire Oitil offioe Of emnlunewf,**+.* Xe *ssu*e from pour clt,lng Sectinn 40 it was your trrucbt that the question Of clnal oftlce-boldi~nc by the em- n?oyee in nresented. IOU rlonot. state the character of serrjoe Farformed by this erinloree fOr the c1t.v 0T 5an Avtanlo, but were3r say he, how- ever, .xent t,o rnr:- rj th t.he city Of Can Antonio IV the 1st day of Fentepber and ran evlrTlnred hlrins! the nerlod from Sertember 1st throupb Sentemher 15the". We are not 8drised whether hjs ser- vice VP= t.pst of an otffcer Or s mere emnlapee &wlnB that verlod. We ausure, however, thst Fe was an e``rlovee w+fl mot aF offfcer of the ci tv of San Artonio. Mareovert you do not shot t,hat the emntoyee lnvalvc~ was other than an employee hy !'r. Dictioon, the Tax Assessor-Collector of Perar Countv, ard we therefore a6w?w that he was not nn offjcer Of the county but 18s e mere err! ogee. Cpon these osunmrtlons -- that i6, that the em))Yoyee into1 red -- was an employee, as oontradlstlngulshed from 811 of- ficer, in hoth eervioes , no question of irue office-holding Is jnvolverl, and Section 40 of ArtlOYB XVI of the Constjtutlcw has no l-earing upon the problem presented. In some oaem it fs true, as where the dual sewice by en eFp1 oyee of one mtmiojpalj ty ~rformin? at the same time of hjs servjce n service for enother munlOip8lit~, miRht be of such Inoomnatihllit~v es t.het one or even hnth municipalities might re- fuse to nay hjr couwensatjon for such rerfod, but that principle of rwb>ic poljoy canI% hardly a?!plJ t.0 the situation st8ted by VU, for indisruk.ahIv the employee did not owe to Rexar County t?!a duty nf any servzlce nhettoever dvrlnr the st8tutory vacation n~Jnwer) to him on fu?l wv, sn% Werefore his actual perfc?munce nf CervIoe for another municipal esploper could not he incon?nat- lh?e with any duty he owed to We County. We know of no reason rhy,urder the facts state% h? you, 1:exar Ccunty FBJ not be llahle an3 should not PRY t@ the employee hi6 stjpulated sa1arv for an% through .the +aeatl,on neriorl allowed him. Under the statutorv scheme of aT?oranoe OP ren sonable vaca- t37n 131379t,oerplovees , he was entl tYed to this concessjon, hut wa = not comnelled to devote nuch t.ime to rest nnd Jel?nwe, ejther at home, ip the huntinE fjelds, or on #e river banks. Hi6 thIe fer 6uch period wa6 hi6 ver? rwn, and if for an3 ree8on he 681 fit t.r, t,urn It to comnensatory actiojtlea, his was the choice, ard, he ?-arrrs neither t.he State , the aounty nor env j?!diri%t:RS. As the ?tr*7.3rb has it, "Nobcdy Seems one nen?y the worse”!