# The Attorney General of Texas
December 1, 1980 MARK WHITE Attorney General Honorable James B.Adams Director Opinion No. m-282 Texas Department ofPublic Safety 5805 N.Lamar Boulevard P. 0. Box4087 Austin, Texas 78773 Re: Whether a retiring employee is entitled to be paid longevity or hazardous duty pay in addition to accumulated leave if he takes the accumulated leave inalump sum Dear Mr.Adams: You have requested our opinion as to whether a retiring employee is entitled to receive longevity or hazardous duty pay when he is compensated for his accrued leave inalump sum. Article 6813d,V.T.C.S., provides, inpertinent part:

. ..each state employee.

.. is entitled to longevity pay of a maximum,of $4per month for each year of service as an employee of the state tp to and including 25years ofservice. Article 6252-20b, V.T.C.S., states, inpertinent part:

All commissioned law enforcement personnel of the Department of Public Safety..

. are entitled to hazardous duty pay of $5 a month for each year of service in the respective agency, up to and including 30 years inservice. You indicate that it ispossible for aretiring employee ofthe Department of Public Safety to have accrued up to 336 hours vacation time for which ha is entitled to be paid at the time of separation from employment. H.B. 558, Acts 1979,66th Leg., R.S., ch. 843, art. V,S7,at 2900-01. If the employee were to remain cn the payroll while drawing 336 hours vacation time, he would be entitled to be compensated for approximately two months of longevity pay or for a similar amount of hazardous duty pay if he is a commissioned officer. Ifthe employee had 30 years ofservice, the monthly bonus would amount to $50. You ask whether a retiring employee who collects his vacation time payment in a lump sum is entitled to receive longevity or hazardous duty pay for a period equal to the amount of his accrued vacation time.

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Longevity pay is available to an individual only as an “employee of the state.” Likewise, only “commissioned law enforcement personnel of the Department of Public Safety” may receive hazardous duty pay. The clear implication ofboth statutes isthat a person must be on the state payroll during aparticular period in order to qualify for a payment based lpcn that period. In Attorney General Opinion H-1096 (1977), this office said:It is well established that an employee’s unused vacation time

&es not extend his term of employment, and that payment for accrued annual leave ‘has no significance in determining the date ‘ofseparation from employment. Funderburk v. Metropolitan Life Insurance Co., 146So. 2d710,715(La. Ct. App. 1962); Wyatt v.Security Benefit Life Insurance Co., 283P. 2d243, 246 7Kan. 1955). Sea Mutual Life Insurance Co. of New York v. Presbyterian Hospital of Dallas, 503S.W. 2d870, 874(Tex. Civ. App.-Dallas 1973,writ rePd n.r.e.). An employee must be separated from state employment to be eligible for payment of accrued vacation time in a lump sum. At the time of such separation, he forfeits his eligibility for longevity and hazardous &ty pay. It is our opinion, therefore, that a retiring employee is not entitled to receive longevity or hazardous duty pay when he is compensated for his accrued leave in a lump sum. However, ifha were to stay on the payroll anddraw his vacation time, he would be entitled to receive longevity or hazardous duty pay. SUMMARY

A retiring employee is not entitled to receive longevity or hazardous &rty pay when he is compensated for his accrued leave ina lump sum. n

MARK WHITE Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD E.GRAYIII Executive Assistant Attorney General Prepared byRick Gilpin Assistant Attorney General

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APPROVED: OPINION COMMRTEE Susan L. Garrison, Acting Chairman Jon Bible Rick Gilpin Charles Palmer Bruce Youngblood

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