# The Attorney General of Texas
December 20, 1978 JOHN L.HILL Attorney General
Honorable Henry Wade Criminal District Attorney Dallas County Sixth Floor, Records Building Dallas, Texas 75202 Opinion No.H- 1297 He: Constitutionality of article 1041b,Code of Criminal Procedure, relating to vacations for jailers. Dear Mr.Wade: You have requested our opinion concerning the construction of article 104lbofthe Code ofCriminal Procedure which provides:

Vacations forjailers, jail guards and matrons Every member of the sheriff’s department assigned to duty as jailer, jail guard, or jail matron at any county jail in any city of more than twenty-five thousand (25,000) inhabitants shall be allowed fifteen (15)days vacation ineach year with pay, not more than two (2)members to be on vacation at the same time; provided that the provisions ofthis Section of this Act shall not be applied to any such jailer, jail guard, or jail matron in any city of more than twenty-five thousand (25,000) inhabitants, unless such member shall have been regularly employed as such jailer, jail guard, orjail matron for aperiod ofat least one year. Each preceding Federal Census shall determine the population. The sheriff having supervision of the county jail shall designate the days upon which each jailer, jail guard, or jail matron shall be allowed to be on vacation. The sheriff having supervision of the county jail in any such city whoviolates any provision of this Article shall be fined not less than Ten Dollars ($10)nor more than OneHundred Dollars ($100).

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The basic purpose ofthis statute isto give astatutory vacation period tojail guards, jailers andjail matrons whowork inthe county jail ofalarger metropolitan area. Yourquestion involves the conflict which arises inlarger counties where it is impossible toprovide each jailer, jail guard orjail matron with 15days vacation and to schedule the vacations so that no more than two are on vacation at any one time. This situation occurs when there are at least 35employees whoare entitled to vacation during the year. Webelieve the clear intent ofthe legislature was to require that a sufficient number of jail personnel is always present to insure adequate security. It is doubtful that the legislature contemplated that there might be counties employing ajail staff which is so large that it is impossible to provide 15days vacation for each employee unless more than two are onvacation at the same time. Webelieve that the statute must be interpreted to reflect the legislative intent and that each jail guard, jailer or jail matron who has been employed for at least one year is entitled to an annual vacation of 15days even though it may result in more than two employees being on vacation at the same time. The sheriff should insure that the legislative intent is fulfilled by arranging the vacations sothat adequate security is always provided. See generally V.T.C.S. art. 5115.1,

S9(a)(3). You ask how the 15day period is to be calculated. ACourt of Civil Appeals has construed a statute very similar to 1041bwhich provided that members of fire departments in cities of more than 30,000 inhabitants were to be given 15days vacation. In the dispute over whether or not vacation time had been given, the court reasoned that aday ofvacation isadavoff from work which would otherwise be a normal working day but for the vacation. Coffman v. City of Wichita Falls, 374 S.W.2d 798 (Tex. Civ. App. - Fort Worth 1964, writ ref’d). This definition excludes legal holidays and other non working days from being included in the 15 day vacation period to be given jail guards. See also Attorney General Opinion V1072(1950). SUMMARY

Jail guards who have regularly been employed as such for one year receive 15 days vacation from work. The prohibition against more than two guards onvacation at the same time isineffective ifimpossible to comply with.

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APPROVED:

C.ROBERT HEATH, Chawman Opinion Committee

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