January16,1976

The Honorable Bevington Reed Commissioner,Coordinating Board Texas College h University System P. 0. Box 12788 Austin, Texas 78711 OpinionNo. H-766

Re: Whether Appropriation Act provision concerning payment for one-half accumulated sick leave upon termination **of.** employment is applicable to institutionsof higher education.

Dear Commissioner Reed:

You have requested our opinion on several questions regarding the provision **of** the current General Appropriations Act, Acts 1975, 64thLeg., ch. 743,p.2417, which for the first time provides forpayment of one-half of an employee's accumulated sick leave upon terminationof employment.The GeneralAppropriationsAct, provides in articleV, section 7(b) at pp. 2849-2850:

b. Employees of the State shall, without deduction in salary, be entitled to sick leave subject to the following conditions:
Sick leave entitlement shall be earned at the rate **of** eight (8)hours for eachmonth or fractionof a month employment, and shall accumulatewith the unused amount of such leave carried forward each month.
Sick leavewith pay may be taken when sickness, injury, or pregnancy and confinementprevent the employee's performance of duty or when a member of his immediate family is actually ill. An employeewho must be absent from duty because of illness shall notify his supervisoror cause him to be notified of that fact at the earliest practicable time.

p. 3232
,/. .

The HonorableBevington Reed - page 2 W-.766)

PC 38 eligible for accumula,;ed sick leavewith pay during a continuous period of more than three (3)working days, an employee absent due to illness shall send to the administrativehead of his employing agency a doctor's certificate showing the cause or nature of the illness, or some other written statementof the facts concerning the illnesswhich is acceptable to such administrativehead.
Upon return to duty after sick leave the employee concerned shall, without delay, complete the prescribed application for sick leave and submit the same throughproper channels to the appropriateapproving authority for his consideration. Exceptions to the amount of sick leave an employeemay takemay be authorizedby the administrativehead or heads of any agency of the State provided such exceptions are authorized' ' on an individualbasis after a review of themerits of suchparticular case. A statementof any such authorized exceptions or the reasons **for** them shall be attached to the State agency's duplicatepayroll voucher for the payroll period affected by such authorized exceptions.

p.3233The Honorable Bevington Reed - page 3 (H-766)

**Your** first question **asks:**

Is the rider provision in Fection **7(b)** of Article V of the present General Appropriation Bill, authorizingpayments to employees for accumulated **sick** leave, applicable to the institutionsof higher education?
The statute clearly requires that all state employees, upon separation,be paid for one-half of their accrued sick leave. No exception is created for employees **of** state institutionsof higher education. The exception in the precedingparagraph applies only to "[tlhe foregoinqprovision regarding sick leave" and is not applicable to any subsequent Drovision. It is well settled that,where the lansuase of a statute ia plain and clear, itmust.be given effecf ai written.

Thp&*Yr 254 S.W. 2d 98 (Tex.Sup. 1952). usurp the function of the Legislature by reading into a statute a-provisionwhich is not contained therein. Goldman v. Torres, 341 S.W.Zd 154 (Tax. Sup. 1960). It is therefore our opinion that the provision of the General AppropriationsAct providing forpayment of one-half of an employee's accumulated sick leave upon termination of employment is applicable to state institutionsof higher education.

Your second question is:
May the governing board of an institution **of** higher education limit the maximum number of days of sick leavewhich can be accumlated by an employee for either payment purposes in the case **of** termination
or actual use in the case of illness?

**p. 3234** .

The Honorable Bevington Reed - page 4 (H-766)

.>b&i-d ii1

response to your firziquestion, the Leqislaturehas established a policy of payment for a portion of unused sick leave. The language of theAppropriationsAct indicates that this policy applies to institutionsof higher education, even though these institutionshave some flexibility in establishinggeneral sick leavepolicies. Thus, if an institution of higher education had established sick leave policiesprior to September 1, 1975, itmay continue to enforce those policies and to promulgate additionalpolicies of a similar nature. These policiesmight include limitations
on themaximum amount of sick leavewhich can be accrued. However, the institutions may not thwart the purpose of the Act by establishing two different types of sick leave, such as sick leave accrued for use in case of illness and sick leave forpayment purposes on terminationof state employment.

Your third and fourth questions ask:
(3) Are employees of an institution of higher educationwho have been hired in connectionwith projects fundedby grants or contracts and paid from the fundsmade availablepursuant to such grant or contract entitled to be paid for accumulated sick leave even though the grant or contract does not allow or provide for such expenditure?
(4) Are the institutionsof higher education required tomake payments **for** accumulated sick leave to employees of the institutions'auxiliary enterpriseswho terminate employment?
The provision'

of the GeneralAppropriationsAct which authorizespayment for one-half of accrued sick leave is applicable to "state employees." Thus, if an individual is
a "state employee" he will be entitled to the benefits of this portion of theAppropriationsAct. Since the institutions of higher education about which you inquire are agencies of the State, their employees are state employees. Your third question presupposes that the individualswhose salaries

p.3235. .

The Honorable Bevington Reed - page 5 (H-766)

_ ,-i: .nith :heproceeds of grant: or contracts are employees of the institution. As such they are entitled to the benefits of the AppropriationsAct provision relating to payment for sick leave. Auxiliary enterprise employees are also employees of the institutionsand are similarly entitled to the Act's benefits. See Attorney General Opinion H-456 (1974).

- With regard to your last question, where you ask us to suggest options available to the institutionsof higher education if funds are not available for sick leavepayments, we express no opinion. See Attorney General Opinion H-211 (1974). -

SUMMARY
The provision of the General AppropriationsAct providing for payment of one-half of an employees' accumulated sick leave upon terminationof employment is applitable to state institutionsof higher education. The governing boards of certain institutionsmay limit the maximum number of days of sick leave which an employee'may accumulate,but it may not draw a distinctionbetween the accrual of sick leave forpayment purposes in the event of separation and accrual for actual use in case of illness. Employees of institutions of higher education are state empl6yees entitled to the benefits of the sick leave payment provisions of the Appropriations Act.
Very truly yours,

Attorney General ,ofTexas

p. 3236I..

. The Honorable Bevington Reed - page 6 (H-766)

Opmion Committee jwb

p.3237