. . 

. 

MARK WHITE 

Attorney General 

5upfelm coull BUlldltlQ 

P. 0. Box 12548 

*ustIn. lx. 78711 

5%?l475.2591 

T&X 9101874-1367 

r8lacopl.w 51214750266 

lw7 MSb St., suite 1400 

oaIIas. TX. 75201 

2w742a944 

4524 Alberla Ave. suite 150 

El Paw. lx. 79905 

91- 

1220 DalIa AVO, SullO zoz 

Noueton. TX. 77002 

71- 

w5 Brosdw*y, suits 312 

Lubhock,Tx. 79401 

eml747-522a 

4309 N. Tenth. Suite 8 

McAlleq TX. 78.501 

512a82a7 

200 Mein Piaza, SUIC UK) 

!%n Antonio. TX. 78205 

51212254191 

The Attorney ,General of Texas 

Eonorable W. E. Snelson, Chairman 

Senate Education Committee 

Texas State Senate 

State Capitol Building. 128-C 

Austin, Texas 78711 

Opinioa No. lm-427 

Re: Sick leave entitlement of 

state amployees 

Dear Senator Snelson: 

You have requested our opinion regarding an employee terminated 

by the State Commission for the Blind on June 25. 1979, while the 

employee was drawing sick leave. In Attorney General Opinion MW-247 

(198O)b. we said that this employee was not entitled to be paid a lump 

sum &d compensation for that portion of his accrued sick leave vhich 

remained unused at the time of his discharge. 

The pertinent provisions regarding sick leave in effect at the 

tima the aforesaid employee was terminated were found in the 

Appropriations Act for the 1970-1979 biennium at page V-32. See Acts 

1977, 65th Leg. ch. 072 at 2699, 3146. They read in part: 

b. Employees of the State shall, without 

deduction in salary, be entitled to sick’ leave 

subject to the following conditions: 

An employee will eata sick leave entitlement 

beginning on the first day df employment vith the 

State and terminating on the last day of duty. 

Sick leave entitlement shall be earned at the 

rate of eight (8) hours for each month or fraction 

of a month empl&ant. and shall accumulate with 

the unused amount of such leave carried forward 

each month. Sick leave accrual shall terminate on 

the last day of duty. 

Sick leave with pay may be taken when 

sickness, injury. or pregnancy and confinement 

prevent. the employee's performance 06 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 

p. 1452 
. him to be notified of that fact at the earliest 

practicable time. (Emphasis added). 

Under the provisions of the Appropriations Act, in our opinion, 

if an employee is not prevented by illness from performing his duty at 

the time he is terminated, the right to use accumulated sick leave 

never accNes and the termination of employment extinguishes the 

contingent right. See Attorney Ganeral Opinion MW-247 (19&O). Cf. 

City of Aouaton v. Caldwell. 582 S.W.Zd 494 (Tex. Civ. App. - Beaumont 

1979, no writ); Patton v. Governing Board of San Jacinto School 

District, 143 Cal. Rptr. 593 (Cal. App. 4th. 1978). Even if 8 state 

employee is genuinely ill and using accumulated sick leave, we do not 

think he is iarnune from involuntary termination and removal from the 

payroll. But if he is terminated after his right to use his 

accumulated sick leave has accrued. the employing agency remains 

liable for the value of the accrued but not-yet-exhausted leave time 

(or the portion applicable. depending on the duration of the illness). 

See Vangilder v. City of Jackson. 492 S.W.2d 15 (Ho. App. - St. Louis 

1973). Cf. Rduc. Code 113.905 (termination of school employees on 

diaabilit~eave); Attorney General Opinion R-352 (1974). 

Turning to your specific question , we advise that if an ill state 

employee subject to the General Appropriations Act for fiscal years 

1978-1979 is involuntarily terminated while on recommended extended 

sick leave ,for a bona fide illness that prevents him from performing 

his duty, he.16 entitled to be paid for his accrued. unexhausted sick 

leave time or, should the duration of the illness not exceed the 

unexhausted time. for the portion applicable. In Attorney General 

Opinion m-247 (1980). the word eaCCNede is used in a coloquial. 

non-technical sense. Cf. 

(vacation benefits accrua. 

Attorney General Opinion U-1075 (1972) 

Rovever. it otherwise correctly states 

the general ~rule applicable to state employees terminated at a time 

when the right to use accumulated sick leave entitlement has not 

vested and we reaffirm it. A different question is presented here. 

SUl4MARY 

An ill state employee subject to the General 

Appropriations Act for fiscal years 1978-1979 who 

is involuntarily terminated while on recommended 

extended sick leave for a bona fide illness that 

prevents him from performing his duty is entitled 

to be paid for his accrued. unexhausted sick leave 

time or, should the duration of the .illnesa not 

exceed the unexhausted time. for the portion 

applicable. 

=Q 

MARK WHITE 

Attorney General of Texas 

p. 1453 
. JOHN W. FAINlZRr JR. 

First Aaeistant Attorney General 

RICRARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by BNCS Youngblood 

Assistant Attorney General 

APPROVED: 

OPINION CoHnIlTRE 

Susan L. Garrison, Chairman 

Jon Bible 

BNce Youngblood 

p. 1454