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**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 ofTexas

Eonorable W. E. Snelson, Chairman Senate Education Committee Texas State **Senate** State Capitol Building. 128-C Austin, Texas 78711 OpinioaNo. 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 employeewas 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 1970-1979biennium 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** employmentvith the Stateand terminating on the lastday of duty. Sick leave entitlement shallbe 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 practicabletime. (Emphasisadded). Under the provisions of the Appropriations **Act,** in our opinion, if an employeeis not preventedby illness fromperforminghis 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 Aouatonv. 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 theportionapplicable.depending on the durationof the illness). See Vangilderv. 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 OpinionR-352 (1974). Turning toyour specificquestion,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 ,fora 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. (vacationbenefits accrua. Attorney General Opinion U-1075 (1972) Rovever. it otherwise correctly states the general~ruleapplicable to state employees terminated at a time when the right to use accumulated sick leave entitlement has not vested andwe reaffirm it. A differentquestion ispresentedhere. SUl4MARY
An ill state employee subject to the General Appropriations **Act** for fiscal years 1978-1979who is involuntarily terminated while on recommended extended sick leave for a bona fide illness that prevents him from performinghis duty is entitled to be paid for his accrued.unexhausted sick leave time or, should the duration of the .illnesanot exceed the unexhausted time. for the portion applicable. =Q

MARK WHITE Attorney General of Texas

p. 1453**.** JOHN W. FAINlZRr JR.

FirstAaeistant **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