Untitled Texas Attorney General Opinion ( 1973 )

September 17, 1973
The Honorable Hugh C. Yantis, Jr. Opinion No. H- 105
Executive Director
Texas Water Quality Board Re: What is the meaning
P. 0. Box 13246, Capitol Station of the term “total
Austin, Texas 78711 continuous service”
as used in House Bill
139, General Appro-
priations Act, 63rd,
Dear Mr. Yantis: Legislature?
The General Appropriation Bill for the 1974-1975 fiscal years (House
Bill No. 139, 63rd Legislature) contains, as §a(l) of Article V “Salary
Rates for Classified Positions, I’the following provision:
“An employee who is c,lassified in Salary Groups
2 through 7 inclusive on the effective date of this Act who
has either five (5) years or more total continuous service
with the State of Texas as of September 1, 1973, or will
complete five (5) years total continuous service with the
State of Texas during the fiscal year September 1, 1973
to August 31. 1974, will be awarded a one-step increment
increase on September 1, ,1973. or on the day he completes
five (5) years service during fiscal 1974, but not to exceed
Step 8 of the Salary Group in which such employee is serv-
ing . . . . ” (emphasis added)
You note that several employees of your agency have worked continuously
for the State for five or more years. However, they have not had five years
continuous service “during the past five years (1968 to 1973). ” You ask whether
they are entitled to the longevity raise.
Your request concerns the eligibility of a person whose five years of
“continuous service” may have terminated sometime in the past but who since
p. 490
The Honorable Hugh C. Yantis, Jr., page 2 (H-105)
has resumed State employment. We have also-been asked by a number of
other State agencies to determine the eligibility ‘of those who, though
employed more than five years ago, during the period of their service,
have had some interruption such as a prolonged illness, etc.
Article 3, 5 44 of the Constitution provides:
.
“The Legislature shall provide by law for the ‘,
t.1:
compensation of all officersi servants, agents and.. ,, ‘I.
public contractors, not provided for in this Cons&u-.’ ‘/ .?’
tion, but shall not grant extra compensation to any
officer, agent, servant, or public contractors, after
such public service shall have been performed or
contract entered into for the performance of the same;
nor grant, by appropriation or otherwise, any amount
of money out of the T~reasury of the State, to any indi-.-
vidual, on a claim, real or pretended, when the same
shall not have been provided for by pre-existing law;
nor employ anyone in the name of the State, unless
authorized by pre-existing law. ”
In accordance with the constitutional mandate, the Legislature has
enacted Article 6813b, most recently amended in 1965 (Acts 1965. 59th Leg.,
ch. 46, p. 118), which provides that all salaries of all State officers and
employees shall be determined by the Legislature in the biennial appropria-
tions act.
Although the Position Classification Act of 1961 (Article 6252-11, V.T.C.S.)
provides that the salaries of all full-time salaried employees not specifically
excepted from its coverage shall be in accordance with the Position Classifi-
cation Plan, we see no problem with the longevity provisions of House Bill 139
since they merely provide for the classification of certain employees within
the Plan, not outside of it.
Although not involving the Position Classification Act, Attorney General
Opinion WW-1152 (1961) did involve the validity of a provision in the General
Appropriation Bill prescribing a schedule of increased compensationfor em-
ployees of the State Highway Department based upon the total length of service
p. 491
, .
:
The Honorable Hugh C. Yantis, Jr., page 3 (H-105)
within the Department. In that opinion, this office found the provision to
be valid and not in violation either of $44 of Article 3, of 5 51 of Article 3
or of 5 6 of Article 16 of the Constitution.
The power of the Legislature to prescribe salaries under 544 of
Article 3 is broad and, in determining the constitutionality of any statute
enacted under it. every possible presumption obtains in favor of constitu-
tionality. Commissioners Court of Lubbock County v. Martin, 471 S.W.2d
100 (Tex. Civ. App. , Amarillo, 1971, err. ref’d, n. r. e.).
We are of the opinion, therefore, that so much of House Bill 139 as
provides for additional compensation to State employees having five years
or more of “continuous service” is valid and constitutional.
In determining what is meant by “continuous service, ” we are charged
by Article 10, V. T. C. S. , with applying to words their ordinary “signification. ”
At the same time we are charged by the same statute to “look diligently for
the intention of the Legislature, keeping in view at all times the old law, the
evil and the remedy. ”
“Continuous” is defined as being synonymous with “uninterrupted. ”
Literally, it means something which takes place in unbroken sequence..
Were we to give to it a strict and literal meaning, we would be compelled
to hold that “continuxls service” as used in House Bill 139 requires uninterrupted
service by an employee or officer of the State. Significantly, also, the Legis-
lature used the word “service” and not “employment. ” Giving to “service” its
literal, dictionary meaning, it, too, would restrict the longevity benefits to
employees who actually served the State. Those who remained in its employ
but, for instance, were on vacation (certainly not “serving”1 would interrupt
their service and would not “continuously serve” the State.
However, to adopt such an interpretation would, in our opinion, defeat
the intention of the Legislature which we construe to have been to encourage
employees to remain in the employ of the State and to reward those who do.
We believe that in determining the intention of the Legislature in adopting
the language used, we should give to it a fair and sensible construction to carry
p. 492
. -
The Honorable Hugh C. Yantis, Jr., page 4 (H-105)
out its purpose and not one which would nullify or defeat the legislative
intent. Certainly we should not adopt a construction which would lead
to an absurd conclusion. Railroad Commission V. St, Louis Southwestern
Railway Co., 443 S.W.2d 71 (Tex.Civ.App., Austin, 1969, err. ref’d,
n.r.e.).
There is valid authority to support our conclusion that “continuously”
should not be given its literal interpretation. Germania Farm Mutual Aid
Association v. Anderson, 463 S.W.2d 24 (Tex. Civ.App., Waco, 1971, no
writ) was a suit brought upon a policy of fire insurance which provided there
was no coverage if the premises were vacant and defined vacancy as a condi-
tion when there was no person ‘living on the immediate premises continuously
. . . . ” (emphasis added). Citing from 4A Appleman. Insurance (1969). 5 2834,
the court said:
” ‘Continuously’ as used in connection with a
vacancy clause is held to authorize ‘more than one
period of unoccupancy to exist, ’ and ‘does not imply
that someone shall remain in the building all of the
time without interruption. ’ I’ (463 S. W. 2d at 25)
“Adverse possession” as used in statutes of limitation with reference
to real property is defined by Article 5515, V. T. C.S., as being “an actual
and visible appropriation of the land, commenced and continued, ” under a
claim of right inconsistent with and hostile to the claim of another. It has
been construed to require that the possession be “continuous. ” Holstein v.
Adams, 10 S.W. 560 (Tex. 1889); Boone v. City of Stephenville, 37 S.W.2d
842 (Tex. Civ. App., 1931, no writ); 2 Tex. Jur. 2d, “Adverse Possession”
5 70, p. 145, et seq. However, temporary absences which are not unreason-
able under the surrounding facts and circumstances, do not prevent the occu-
pancy from being considered continuous and uninterrupted. Hankamer v.
Sumrall, 257 S.W.2d 827 (Tex. Civ.App., Beaumont, 1953, err. ref’d,nr.e);
2 Tex. Jur. 2d Adverse Possession, 5 72, p. 149, et seq.
The law of easements requires that, to establish an implied easement,
use must be “continuous. ” This has been held satisfied by the necessarily
intermittent use of a driveway by the occupants of a house and their guests.
Bickler v. Bickler. 403 S.W.2d 354 (Tex. 1966). .
p. 493
. .
I
The Honorable Hugh C. Yantis, Jr., page 5 (H-105)
Decisions in other jurisdictions may be of interest. In Kennedy v.
Westinghouse Electric. Corp., 108 A.2d 409 (N. J. 19541, suit was brought
to recover holiday pay for a holiday to which employees were entitled if
they had “completed three months continuous service” prior to the date of
the holiday. During the three month period. the employees had voluntarily
entered into a work slow-down. The New Jersey court decided against the
employees because the service rendered was not the service contemplated
in the agreement. Nevertheless, it said:
“We may conclude that ‘continuous’ service does
not contemplate the performance of labor during every
scheduled shift hour of every work day. In the very
nature of things ‘there is really no such thing as contin-
uous labor. Holidays, sicknesses, recreation periods,
week-ends, all are breaks in the continuity of one’s
occupation, but would not necessarily destroy its con-
tinuity. ‘United States v. Perry, 55 F.2d 819, 821 (8 Cir . ,
19121. Paragraph (d) is to be read, we think, as imply-
ing no more than that breaks of service for personal or
other reasons which would appeal to reasonable men to
be excusable in the particular circumstances shown will
not destroy continuity of service. We are dealing here,
however, with a concerted and deliberate refusal of
employees to complete their scheduled shifts. . . .‘I
(108 A. 2d at 415-416)
The court declined to decide whether excused absences or absences
due to causes beyond the control of the employee would break the record of
continuous service.
The dictum of the Kennedy case is supported by other decisions: Garnski
v. Metropolitan Life Insurance Co., 287 N.W. 731 (Wis. 1939) holding that for
the purpose of disability insurance, the requirement of continuous employment
for two full years was satisfied despite the fact that the employee had been laid
off for six months because of a reduction in work force; U.S. v. Fitzpatrick.
62 F.2d 562 (10th Cir. 1933) holding that “continuous employment” meant
working with reasonable regularity and was not destroyed by interruptions due
p. 494
The Honorable Hugh C. Yantis, Jr., page 6 (H-105)
to periods of ‘temporary illness; State ex rel Mulrine v. Dorsey, 272 A.2d
709 (Del. 1970) affirming an administrative ruling that “continuous service”
as used with reference to a pension act did not preclude excused interrup-
tions in service of less than one year.
On the other hand,’ “continuous” has been construed by Texas courts.
For example, Article 1269m. Vernon’s Texas Civil Statutes, requires that
promotional examinations be open to policemen ,and firemen “who have held
a continuous position for two (2) years or more in the classification . . .”
and that “No person shall be eligible for promotion unless he has served in
such Department for at least two (2) years immediately preceding the day of
such promotional examination. . . . ” In City of Houston v. Landrum, 448
S.W.2d 816 (Tex. Civ. App., Houston, 1970. err. ref’d., n. r.e.). it was
held that Landrum was ineligible for an examination where there had been
a lapse of some five months in his “continuous service” during the two years
preceding the examination although he had been employed as a fireman off
and on for some twenty years. And see City of San Antonio v. Pinchbank,
489 S.W.2d 451 (Tex. Civ.App., San Antonio, 1972, no writ hist.).
In Wolfe v. State, 75 S.W.2d 677 (Tex. Crim. 1934), the penal provision,
aimed at marathon dance contests, prohibited contests involving “any one con-
tinuous, competitive period of endurance” exceeding 24 hours. Where the
evidence showed that the contestants were required to rest 15 minutes of every
hour, the court, citing the dictionary definition of “continuous” as being “with-
out break, cessation or interruption” etc., held that the evidence failed to
establish the prohibited “continuous, competitive period. ”
In Crane V. Bankers Life and Casualty Company, 281 S.W.2d 117 (Tex.
Civ. App., Eastland, 1955, no writ hist.), suit was an a policy of hospitalization
insurance which provided that the company would not be liable for benefits for
more than 120 days “for any one - continuous period of sickness.” The evidence
showed that the plaintiff had been hospitalized for 120 days, being released on
August 20th and that he returned to the hospital on November 16th. suffering
from basically the same condition, Adopting a rather technical definition of
“sickness, ” the court held that there was not “one continuous period of sickness”
within the meaning of the policy.
p. 495
The Honorable Hugh C. Yantis, Jr., page 7 (H-105)
“It is conclusively shown that there was a break,
a cessation, an interruption, in the type, or degree
of sickness insured against and for which appellee
agreed to pay the expenses.” (281 S. W. 2d at 120)
House Bill 139 recognizes and provides for vacations, sick leave,
emergency leave, a leave of absence with full pay for those called to
active duty with the National Guard and others. We are advised that
various agencies likewise provide for leaves without pay under certain
circumstances. Were we to adopt a strict and literal interpretation of
“continuous service” it would be difficult to apply the law in a manner
consistent with the legislative intent. Instead, we feel that, as stated by
the New Jersey court in the Kennedy case, supra, “continuous service”
does not contemplate the performance of labor every day of every week
for five consecutive years. Rather, it requires five years of service
unbroken by any unauthorized or unreasonable abse,nces. Holidays, days
on sick leave, week-ends, emergency leaves and other approved leaves,
with or without pay, do not break the continuity of service.
Whether or not and under what circumstances absences will be
approved or will affect the continuity of service are matters for deter-
mination either by specific legislation or by those to whom the Legislature
has delegated the responsibility of establishing employment policies. We,
certainly, cannot prescribe what they shall be. We do believe, however,
that whatever policies are established, they must be enforced uniformly and
equitably among the employees of any employing agency to meet the require-
ments of the Fourteenth Amendment to the Constitution of the United States
that citizens be accorded equal protection of the law.
With reference to your precise question, we answer that. since the
appropriations act does not require that the continuous service be completed
immediately prior to the eligibility for longevity pay or that the service,
once established, continue until such time, it is our opinion that an employee
having five years continuous service at any time, whether subsequently
interrupted prior to the fiscal year in question or not, is entitled to the long-
evity pay.
p. 496
. .
The Honorable Hugh C. Yantis, page 8 (H-105)
SUMMARY
Holidays, vacations, approved sick leave, other
approved leaves of absence,with or without pay, do not
break the continuity of one’s service so as to preclude
five years “continuous service” necessary to entitle a
state employee to receive longevity pay. The five years
may be completed at any time prior to the fiscal year in
question and once completed entitle the employee to the
longevity pay despite the fact that, subsequent to the
completion, there may have been an unauthorized inter-
ruption.
>ry truly yours,
L. HILL
Attorney General of Texas
DAVID M. KENDALL. Chairman
Opinion Committee
p. 497