January 16, 1976 

The Honorable Bevington Reed 

Commissioner, Coordinating Board 

Texas College h University System 

P. 0. Box 12788 

Austin, Texas 78711 

Opinion No. H-766 

Re: Whether Appropriation 

Act provision concerning 

payment for one-half 

accumulated sick leave 

upon termination of. 

employment is applicable 

to institutions of higher 

education. 

Dear Commissioner Reed: 

You have requested our opinion on several questions 

regarding the provision of the current General Appropriations 

Act, Acts 1975, 64th Leg., ch. 743, p.2417, which for the 

first time provides for payment of one-half of an employee's 

accumulated sick leave upon termination of employment. The 

General Appropriations Act, provides in article V, 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 each month or fraction of a month 

employment, and shall accumulate with 

the unused amount of such leave carried 

forward each month. 

Sick leave with pay may be taken 

when sickness, injury, or pregnancy 

and confinement prevent the employee's 

performance of duty or when a member 

of his immediate family is actually 

ill. An employee who must be absent 

from duty because of illness shall 

notify his supervisor or cause him to 

be notified of that fact at the earliest 

practicable time. 

p. 3232 

,/ 
. . 

The Honorable Bevington Reed - page 2 W-.766) 

PC 38 eligible for accumula,;ed sick 

leave with pay during a continuous 

period of more than three (3) working 

days, an employee absent due to illness 

shall send to the administrative head 

of his employing agency a doctor's 

certificate showing the cause or 

nature of the illness, or some other 

written statement of the facts concerning 

the illness which is acceptable to 

such administrative head. 

Upon return to duty after sick 

leave the employee concerned shall, 

without delay, complete the prescribed 

application for sick leave and submit 

the same through proper channels to 

the appropriate approving authority 

for his consideration. 

Exceptions to the amount of sick 

leave an employee may take may be 

authorized by the administrative head 

or heads of any agency of the State 

provided such exceptions are authorized' ' 

on an individual basis after a review 

of the merits of such particular case. 

A statement of any such authorized 

exceptions or the reasons for them 

shall be attached to the State agency's 

duplicate payroll voucher for the 

payroll period affected by such authorized 

exceptions. 

p. 3233 
The 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, authorizing payments 

to employees for accumulated sick leave, 

applicable to the institutions of 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 

institutions of higher education. The exception in the 

preceding paragraph applies only to "[tlhe foregoinq provision 

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, it must.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-provision which 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 Appropriations Act providing for payment of 

one-half of an employee's accumulated sick leave upon termination of employment is applicable to state institutions of 

higher education. 

Your second question is: 

May the governing board of an institution of higher education limit the maximum 

number of days of sick leave which 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 firzi question, the Leqislature has established a policy of payment for a portion of 

unused sick leave. The language of the Appropriations Act 

indicates that this policy applies to institutions of higher 

education, even though these institutions have some flexibility 

in establishing general sick leave policies. Thus, if an 

institution of higher education had established sick leave 

policies prior to September 1, 1975, it may continue to 

enforce those policies and to promulgate additional policies 

of a similar nature. These policies might include limitations 

on the maximum amount of sick leave which 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 for payment purposes on termination of state employment. 

Your third and fourth questions ask: 

(3) Are employees of an institution 

of higher education who have been 

hired in connection with projects 

funded by grants or contracts and paid 

from the funds made available pursuant 

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 institutions of higher 

education required to make payments 

for accumulated sick leave to employees of the institutions' auxiliary 

enterprises who terminate employment? 

The provision' of the General Appropriations Act which 

authorizes payment 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 the Appropriations Act. 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 individuals whose salaries 

p. 3235 
. . 

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

_ ,-i: .nith :he proceeds of grant: or contracts are employees 

of the institution. As such they are entitled to the benefits 

of the Appropriations Act provision relating to payment for 

sick leave. Auxiliary enterprise employees are also employees 

of the institutions and 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 institutions of higher 

education if funds are not available for sick leave payments, 

we express no opinion. See Attorney General Opinion H-211 

(1974). 

- 

SUMMARY 

The provision of the General 

Appropriations Act providing for payment 

of one-half of an employees' accumulated 

sick leave upon termination of employment 

is applitable to state institutions of 

higher education. The governing boards 

of certain institutions may limit the 

maximum number of days of sick leave 

which an employee'may accumulate, but it 

may not draw a distinction between the 

accrual of sick leave for payment 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 ,of Texas 

p. 3236 
I.. 

. 

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

Opmion Committee 

jwb 

p. 3237