Untitled Texas Attorney General Opinion ( 1944 )

OFFICE OF THE AlTORNEY GENERAL OF TEXAS AUSTIN Yonorable C. ki. Cavmeas State Audlter Awtln, Texa8 Dear kr. Carneser You propound f 8 arlary in suoh am died during a answer to the above Abe peat had been made from ooal Funds rather than from uld your answer to the above qu&~- to a departaent head in the same 0 an ewiployee~~ The liability of the State for pawent of oompen- cation to an employee Is predicated upon the conceptinn of uut ua~ VgreeLent of the parties -- the State md the em- ployee t- for aervioe to be performed by the employee and paybent t,tiercfor to be made by the State. Thnre can be no lIabllit$,on the part al' &he State unless there has hem- perforoledkhc contemplated service by the eauplcqea. Com- pensation is an incident to the servioe and dependent upon. it. uunorablo c; . u. Laxness - page 2 In the oaae ot the head oP a department, or any other official, the general rule oP liability for oompen- motion la net predio*tad upon an aotual performanoe 0P the deyartltental or oPPioia1 dutiea, bat oompenaatfon la an in- qldent to the ofPioe, and may be paid and &ren er@oroAd, when in truth the aiiloer doee not periorm the oPPiola1 duties 0P him 0PPioe. Thie diat%n~$ion with reapecrt to anployeea and 0fPioera is 05 no importanoe, ho~wer, In tha present in- w-7. Under no aonoeption Of llaBillty, rhetbu to an employee or to,the bead eP a department or ether public officer, will the State be liable where the employee hen not perfOr8Wd h&S SemkO86, or the head OP the department or titate oPPioia1, aa t,he aaa~e rnr be, ham died. la the oaae oP the employee the periomnoe of his eontraatual duties ceaaea upon h%a death, and therefore thre la no liability to him eatate whataomer, and in the oaae of the death oP the head of a dapartaeut, or othtw State ot- ricer, there la no turthor liability oi the Stite to hie eetate or legal repreaentatire, beaauae he has ceased to be an ofiioer eP the Litate, and the prinofple that ool- pensation is an inofdent to the oPPioe ham no applioa- tion, Por there la no oPPioia1 tenure or holding upon rhioh to prodleate liabillt~. This Department held in Upinion go. o-Pg14 that an employee of the state rhoae emplgment was terminated by the order oP the umative dlreator having authorfty man not entitled to ooaponeatlon bwoad the date af him diecharge as a iaoatioa allowanoe, in wh%oh opinion we maid: *Prom the faata am met out in your let- ter, it la apparent that Mr. garria (the em- ploree) maa not in the aployment oP the State between Yay 23, 1040, and June 9, lp40. For thin reaaen, you are adrieed that Yr. Iiarris sonnet be legally paid for the period betrem Say 23 and 3uae 3, 1940.9 So, alro, in Opinion Ye. o-ID04 ma reaffirmed that holding in the Pollowing language, *An hour letter eP inquiry of date kiaroh 30, ~@&a, ypru d.ate that br. k&egg, an employee uonorable L. A. Cavness - page 8 of the Texas Liquor Control Board at the time of his death tam antftlad to the _ statutory raoatlon period, and inquire whether or not his estate mar nor be ptid the salary whioh Ur. Ilogg would hare dram during such raoation period but for his death. "Your queation must be lna wexedIn the negative. The atatute contemplatea *at em- ployees of the Btate may hare the deil~ated period of raoation upon tull pay. T&is aieana, neceaaari1y, that the status .sP the employee must hare existed during the so- called vaoation period. Yhwa one diem, or otherwise Oeaaea to be an eaployee of the Ptate, hia stataa am emplofeo, of oourae, is at an end, and, therefore, the inoident- al right to a raoation upon full pay am an eraplgeehaa oeaaed.* Front what we hare add it foll~ora that your questions should be marered oategorioally as follows: (1) The Lltate'a liability oeaaea upon the death ot the employee. (2) Qur answer to (1) I.8not 8PPected by the source ot the public Punda Prom vhich the employee wee pa&d. (3) Our anawera to (1) and (2) would be the same above given, rhere the deceased servant aa was the bead of a department or other public offiolal, am contra- distinguished Prom an employee ot the State. Very truly your0 Oole .i.+p#r Aaaistant US-kit