Untitled Texas Attorney General Opinion ( 1941 )

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Honorable Tom DeBerry, Member
State Board of Control
Austin, Texas
Dear Sir:
Opinion No. O-3335
Re: Whether State employee may
draw twelve (12) days’ vaca-
tion pay after drafting into
Army.
In your letter of March 26, 1941, you request our opinion in re-
sponse to the following questions:
‘Is an employee of the State government who is drafted for
service in the United States Army enti~tled to twelve (12) days’ va-
cation with pay, as provided under the provisions of the various
State appropriations bills, after i.nduction into the army?
“In other words, our question is, can such an employee draw
pay from both the Federal government and the State of Texas dur-
ing the first twelve (12) days of his service in the regular army?”
The men whom you mention not being members of either the National
Guard of Texas, the National Guard Reserve of Texas, the ‘Organized Reserves
of the United States Army, or the Naval Reserves of the United States Navy, it
is apparent from a reading of Article 5890a. Vernon’s Civil Statutes, that it has
no bearing on your question.
In the general rider to the Departmental Appropriation Bill, at page
284, Vol. 2, General and Special Laws, 46th Legislature, we find the following
provision:
“Vacation Allowance. Department employees shall, without de-
duction in salary, receive not exceeding twelve days’ vacation, exclu-
sive of Sundays and legal holidays , on which State offices are closed,
for each State fiscal year, such vacation period to be mutually agreed
upon by the head of each department with his employees, provided, that
employees belonging to the Texas National Guard may have their vaca-
tion at the time of the meeting of the annual encampment. Provided,
Honorable Tom DeBerry, Page 2, O-3335
that no employee for whom a salary is hereby appropriated, shall
receive compensation while on vacation unless he or she has been
an employee of the department for not less than six calendar months,
preceding the vacation period.”
The above does no more than authorize a twelve day vacation on pay
for departmental employees. It makes no attempt to grant to such employees
any pay after the termination of their employment. Our opinion No. O-2814.
From the case of Gutzwiller V. American Tobacco Co., 122 A. 586, Vermont
Supreme Court, we quote:
“* * * A vacation, according to Mr. Webster, is a period of
leisure or rest; a holiday. This defini.tion, cl.early, implies a con-
tinuation of service, rather than that the service has ended. The
master, who in recognition of faithful service, gives his servant a
holiday, cannot be said to thereby terminate his relation of master
to such servant. * * *”
From the opinion of the Supreme Court of Washington in State v. Case,
19 P. (2d) 927, we quote:
“Section 133, chapter 7, p. 67, Laws of 1921. reads as follows:
‘Each subordinate officer and employee of the several. offices, depa.rt-
ments, and institutions of the state government shall be entitled, dur-
ing each twelve months’ period, to fourteen days’ leave of absence with
full pay.’
“It is the relator’s contention that, since he did not take a vaca-
tion during the twelve months prior to the time that his connection with
the office of the state auditor ceased, he was entitled to such vacation
period after the severance of his connection with that office. The stat-
ute, just quoted, provides that ‘each subordinate officer’ of the state
government shall be entitled, during each twelve months’ period, to
fourteen days’ leave of absence with full pay. The statute, by its ex-
press language, would appear to contemplate that the one receiving a
vacation on pay must be a subordinate officer or employee at the time
the vacation was taken. We see nothing in the statute which would au-
thorize the payment, for a vacation period, to one who had been an em-
ployee of the state, subsequent to the time that his service ended. The
purpose of the statute, as we view it, was to give each employee, during
the time that he was in the service of the state, a vacation of fourteen
days on pay; but it does not follow from this that the state auditor could
issue a warrant covering a vacation period which had not been taken,
.
Honorable Tom DeBerry, Page 3, o-3335
and, in effect, grant the employee a vacation on pay after he had
ceased to be an employee of the state. If this could be done, it
would be, in effect, the giving to the employee of a gratuity or bo-
nus in addition to his regular salary which he agreed to accept at
the time the employment or service began.
“* * * It is our conclusion on this branch of the case that,
when the relator’s service was terminated, his right to a vaca-
tion ceased and he no longer had a right to compensation for a va-
cation period which he did not take during the time of his employ-
ment.*
is difficult to see how a State employee,
It after he has been drafted
into the Army, could be considered as still being an employee of the State,
even on vacation. However, we do not find it necessary to rest our opinion
on the proposition that employment technically ceases upon induction into
the Army.
Article XVI, Section 33, of the State Constitution, reads:
“The Accounting Officers of this State shall neither draw nor
pay a warrant upon the Treasury in favor of any person, for salary
or compensation as agent, officer or appointee, who holds at the same
time any other office or position of honor, trust or profit, under this
State or the United States, except as prescribed in this Constitution.
Provided, that this restriction as to the drawing and paying of warrants
upon the Treasury shall not apply to officers of the National Guard of
Texas, the National Guard Reserve, the Officers Reserve Corps of the
United States, nor to enlisted men of the National Guard, the National
Guard Reserve, and the Organized Reserves of the United States, nor
to retired officers of the United States Army, Navy and Marine Corps,
and retired warrant officers and retired enlisted men of the United
States Army, Navy, and Marine Corps.”
From the above it is clear, without argument, that unless a man falls
within one of the exceptions provided in the second sentence the Comptroller
cannot issue him a warrant in consideration of any employment by the State
subsequent to the time he is enlisted in the Army, whether as an officer or a
private. It must be remembered that in Carpenter v. Sheppard, 145 S. W. (2d)
562, the Supreme Court was dealing with a man who was an officer in the Na-
tional Guard and as such had been ordered into federal service by the President.
Honorable Tom DeBerry. Page 4, O-3335
It was on the express ground that Carpenter was an officer of the National
Guard and within the exceptions that he was held entitled to draw pay from
the State after his induction into the Army. Your question, as we understand
it, relates to men who are not in the National Guard nor any of the other ex-
ceptions listed in the above constitutional provision. Hence, we are compelled
to answer your question in the negattve.
Yours very truly
A TTORNEY GENERAL OF TEXAS
Glenn R. Lewis
Assistant
APPROVED
OPINION
COMMITTEE
BY-
Chairman
GRL:LM
ATTORNEY GENERAL OF TEXAS