OFFICE OF THE AlTORNEY GENERAL OF TEXAS AUSTIN y-%2z \ & Honorable J.S.Mumaimn lmmutive Mrsator State Department of Pub110 Nelfare Auatln, Texas Beer sir: ‘uie reJoei*aayour 1 tober 9, 1940, whioh ia aelf-explnnatoryan P, aa followrr . . . . "On septmlb4W 29, L910, Mr. EZarrirr rilea with the Department a olalm for ralary peymn% Honorable J. 8. Msrohlson, Pam 2 for the @riOdOf tine k&y 23 t0 J-0 3, 1940, being the balpnos or unexpended portion oi his vaoation period. “As Xxxeautlvs Dlreotor~of the State Dapart- went of Publlo Welfare, I respsottullyrequest to bs advised as to whsthsr or not the Department 0~11legally pay&r. Earrla for ths period May 23 to June 3, 194C* The amount of payment 1s not qusstlonedr= we 0all JTOW atttwhn to tbet part 0r Eje0tim 2 of tileDeppartmental ApproyrlatronBill, S. Be 427, Acts 1939, 46th Leg., Speolal Laws, page 7 (at page 224) whloh prtaLns to vacation alloynoes to state smployeee. Said provision reads as followa: waoation Mlowanos. Dspartorsnt em loyesi shall, witmut debuotlon in salmy, ``08! ve not exoseding twelve days’ vacation, utolurive oi Sumdays~endlop1 holld&]ol,on wh5.ohState of- floes are olassd, for each State tlsoal par, swh vaoetlon psrlod to be mutually agreed upon by the head ot aach degrrtbbnt wlth his employees, provided,that cmploye~s belaagiq to the Tsxaa BlsrtlonalOwrd may have their vaoation at the time of the m6ot~ o‘ft&a?annual eaoarapnent. irovlded, that 00 employos for whhola a salary is h%rsby appropriated,shall recslva compensation while on vaoatlon unless he or she has been an employes of the departmentfor not leas than six oalendar mnths preocpdingths vaoatloa pWiOQ,* Th6 above quoted provision ot the Departrmntal AppropriationBill would aewa to oontemplat6 that one muat be a departmentalsraployss&r&g the vaoatlon period In order to reoelve ,gayZor th6 Yaoatfon period. To this Of- rat, we quote Srom.the oa8e of 5utzwlllorv. Amerioan Tobaooo CO. et al,,122 A. 586, Supreme Court of Vermont, as follows: *. . . A VaOationi aOO&ding to Ar. Webstsr, ia a period o? lsleure o? resti,a holiday. This definition,oleorly, impllsr a eontlouation of servioe, rtitherWan thottthe semfoe has ended. 1-. A .., C mnorable J. 8. &urchDaina, Page 3 The imeter, who ln r6oognltlonof SalthSul s4r- vIo4, gives hie servant a holiday, oanuot be said ts thereby tcsrmlnatahis relation oS meter to suoh asrvant. . . ." In the oaso OS State ax r41. Uonsall V. Cam, State Treasurer,19 Y. (Zd) 92PI the Suprems Court OS Hashing&n, had under oonsld4ratlona pipblem somwhat slaillarto thy one pressnt hare. We quote,.at 14z@h, from #aid oasa, as Sollowsr "The relator, C. 8. Bonsall, for more than a y8ar prior to January 11, 1933, was the duly qualifiedand aotlng deputy auditor OS thin state. The responds& la the duly elrwted, qualified, and aoting treasurer of the stats. The relntor*o oonneotlonwith t&4 atate audltorfeofflea was sever%d January 11, 1933, and he.has not rinoe that tlfw been lnth4 e6rvioe of the stat. in the auditor's 0rrioO. Janwry 10, 1933, or the daT before his omasotion wtth the auditor's oKloo osaeed, the relator pm ed a vowher for a par- iod OS Sourt8aa days, Y r Oh was in addition to th4~ regular 1Ponth)yaompensationwhioh h4 had reoeivrd during his tern OS servioe. Tha stat4 auditor al- lowed the olalm and leewd a wBFlps.nt therefor. When the warr(Lllt rau premntsd to the state tress- urer, that orrioer nru'urredto pay the s-0, 01ele- Ing that it was illegal. During the year prior to January 11,1833, the rdlator had taken no vaoa- tion, and the warrant issued waa intended to owor ths vaoatlon piwlod. wSeotIon 1.33,ohaptar 7, p. 69, Lams of 1921, reads as rcdbwsr Viaoh subordinateoSSlo8r and employee of the several oSSIo4s, deparUt4nts,and Inetitutlonsof the @ate (aovcprrunentshall be en- title&, during eaoh trrlv4 raonths'gariod, to Sour- teen daya* leave of absents with f’ull pay.4 *(l) XC Is the relator's oontention,that sin40 ha did not take a vaoatlon during th4 twelve months prior to the tlae that his oonneotionwith th4 of- Sloe OS th4 stat4 auditor oeassd, hs was entitled to suoh vacation period after the aeveranse OS his Honorable J. S. N~ohieon, Page 4 oonneotlonwith that oillioa. The statute, just quoted, provides that *raoh eubordlnata o?flaer* of the state government shall be ontitled, dur- ing each tW@aW IQOdhd ptirlod,tQ rourteen days’ leave oi abeenoe with full pey. The statute, its BXprelle1aZigwge.*rOtid a’.pwr t0 COIIteiDJ71 that the one reoeivins a vaoation on pay met bs a subordinateoffleer or sm~loyee at the time the vaoation was taken, RB see nothlng Ln the statute whioh would eutlrorirethe paymom, ror a vacation period, to .#a16 who bad been an .mnplqyee ” of the state. subsequent to -&hotime that his ... .. service ended. The DUr~8S of the statute, a8 we view it was to give each daployee during the time tikt he was in the servloe o,i the state, a vaoatlon of fourteen days cm payi but it does not follow iron this that the state auditor ootid issue a warm&t corerlag a vaootlon perked which had not been Faken, and, in effeot, grant th. employae a vacation on pay after he had ooaaed to be en employee oi the atate, Xi this could be done, it would be, in erieat, the glv the employee of a gratuity or bonus in add9” tion to his regular 8alary whiah he agrood to aooept at the time the employment or eervloo began. 0. . * . “(2) St is undoubted3ytrue’that during the term of the service the 8tato auditior has a die- oretion to determineat what time the rtrspeotite employees say avail theafmlves of tw vaoation period On pay, as provldod in the statute but when the smployaentsOa#et, the state auditorts diaorstlonIn the matter likewfae oeaaea, and it becames a question rnersly0r the oonstruotion0r the statute. The construotlbnplaoed upon the statute heretofore by the attorney general’s of- iioe should be given proper oonsideratlon.but it is not controlling, %t Limour oonolwion-on this branoh of the oarðat, when th6 relator’s f!Or- vioe was terrntnntecl.hfa right to a oaoatZen ceased and he no lonmr had a rikxhtto ooaDen8a- tion for a vaoatlon ps-rlodwhioh he did not take curing the t1Irle0r Ns s&pl~OymQt*" (Under- aoerixlgours) Honorable J. S.Murchleon,Pa&e 6 From the faote as set out In your letter, It is a.gpuent that ior.iiarriswas not in the eaployment or the State betWean Kuy 23, 1940, and June i5,1940, BOr thle reason, you are adviosd that atr.&m-la aannot be le&ly paiC for the gerlod betweenMay 23 and Juno 3, 1940. Yours very truly ATTCRXlX Q-mU OB TiEAS me shoptaw ATTORNEY G-L Ol?TEXAS