December 15,1972 p-J;7 s

Hon. Bob Bullock State of Texas Office of the Secretary of State Austin, Texas 78711

Dear Mr. Bullock: Opinion No. M- 1279 Re: Questions relating to transfer of accrued vacation credit and payment in cash in lieu of vacation taken, of state employees and constitutional officers of the State. Your request for an opinion asks the.followingquestions: "1.

"2
.

"3
. "4. May a state employeewho is appointed, without interruptionof state employment, to a Constitutional Office of the State of Texas be creditedwith unused vacation entitlement accrued prior to his appointment? May a ConstitutionalOfficer of the State of Texas accrue andbe paid for all accruedbut unused vacation entitlement upon termination from that office? If the above answer is in the affirmative, when should payment be made? If there are insufficient funds in the appointed officer's line item salary appropriation, fromwhich salary appropriation shouldpayment be made? ” Accrued vacation entitlement is a vested right of State employees and of their estates. Attorney General's Opinions Nos. M-1075 (1972)and M-1252 (1972). Article 681313,

Vernon's Civil Statutes,provides in part:

-6280-Hon. Bob Bullock, page 2 (M-1279)

-“From and after the effective date of this Act, all salariesof all State officers and State employees, includingthe *salariespaid any individual out of the General Revenue Fund, shallbe in such sums or amounts as may be provided for by the Legislature in thebiennial Appropriations Act.

. . ." It was held in Attorney General's OpinionNo. M-1252.

"Sincepayment for all duly accrued vacation time is payment for services rendered, it is our opinion that such payment constitutes salarieswithin themeaning of Article 6813b.
. . . Employees forwhom line item appropriations are made may be paid for accumulated vacation time from other salary funds." Section 7 of Article V of the currentGeneral AppropriationAct is by its express terms applicableonly to "annual employees of the State". Therefore, it is our opinion that theprovisions of Section 7 of Article V relating to ",Employees Vacation and Leaves" are not applicable to State officials. Terminal leave pay for all vacation time duly accruedwas required for the first time in the currentGeneral Appropriation Act. Prior to its enactment,pay for accruedvacation was not permitted except as provided in Article 6252-8a,Vernon's Civil Statutes. See, Attorney General's OpinionNo. M-1075 (1972). Section 7 of Article V of ,thecurrentGeneral Appropriation Act provides in part:

"If a State employee transfersdfrectly from one State agency to another, he shall be entitled to creditwith the newly employing agency for his accumulatedbut unusedvacation entitlement, provided that his employmentwith the State is uninterrupted. A State employee who resigns, is dismisaed, or separates from State employment shall be entitled to be paid for all vacation time duly accrued." -6281-Bon. Bob Bullock, page 3 " " .(M-1279)

In view of the foregoing,your questions are answered as follows: 1. Whenever a State employee qualifies to a Constitutional Office of the State, he ceases tobe a State employee. There is no authorization for payment for unusedvacation time for an employeewhose employment was terminatedprior to September 1, 1972. If a State employee qualifies to a Constitutional Office after September 1, 1972, such individual would be entitled to be paid all vacation timeduly accrued. An employee's unused vacation entitlementmay not be transferred and credited to him in his capacityas a Constitutional or statutory Officer because the abovequoted provision regarding transfers of vacation time speaks only to employees as distinguished from officers. The same language regarding transfers of vacation time has been included in the last five appropriationbills. 2. A ConstitutionalOfficer of the Statemay not accrue or be paid for vacation. In view of our answer to,question 2, it is unnecessary to answer question 3 and 4. SUMMARY ------- Section 7 of Article V of the currentGeneral Appropriation Act relating to "Employees Vacation and Leaves" isnot applicable to State officials.

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ney General of Texas Prepared by Bob Gauss Assistant Attorney General

-6282-Hon. Bob Bullock,page 4 (M-1279)

APPROVED: OPINION COMMITTEE W. E. Ailen, Chairman Bob Flowers Marvin Sentell J. C. Davis John Grace SAMUEL D.MCDANIEL Staff LegalAssistant
ALFRED WALKER ExecutiveAssistant NOLA WHITE First Assistant

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