October 12, 1973 

Honorable Rbb&t~S. ~Caiv&t 

Comptroller of Public Accountr 

State of Taxae.: 

Atietin. ‘78774 ’ 

~Op@ibn No. H-126 

Re: WI-+&her Houec Bill 139. 

63rd Leg., authbrisei 

“payment of acciued vacation pay to an employee 

who reparatee or ie 

l eparkted from l tate 

Dear Mr: C’veit:~~ ,&mployment 

You~have reqdirted our &pinion tion&nizig the iighte of employee8 

separated from, state. em@loyment to b@ paid for accrued vacation time, 

under House Bill 139, ofithe 63rd Legialature, The General Appropriations 

Act for fiecal~yeare ~1974 and 1975. 

Your mpecifi’c question aeke: 

“Can thi~e department legally pay’ dn.itiployee 

for vacation time duly accrued on the date he aeparater from State employment for any unured vacation 

&titlement undei’*e .current Appropriation Bill?” 

Exc’~~~‘f~r’iirticle;‘bZSi-8i.~ V.T. C. S., which appiie.e to’ vication 

ti& ac&uxi&itad at tl&+at~‘of a ‘et&e employde. there ii non general law 

.provLdicg fi$$ $?+~.ohtim~ ~foi all state employeer. Article ‘6252-8. V.T.CS, 

givee to hotirly etiplo$eer, continuously emiloytid’by the State for 6 months 

or more, whatever Mcition rights may be granted to konthly employees. 

Whatever’vacatioti iighte do exiet arc,found’in Article V of the various 

appropriation acts. Prior to fircal 1973, there wae no authority for an employee to be paid a lump rum for accrued vacation bti the termination d hie 

“’ employment, and it wao l uggeeted in Attorney~General Opinion M-1075 that 

"all reeignation#,dirmierale or l eparatione from State employment murt be 
The Honorable Robert S. Calvert, page 2,(H-126) 

accomplirhed effective on a date which will permit the employee to be : 

paid for hir accumulated vacation. It 

Although that opinion and Attorney General Opinion No. 1252 (1972) 

as well, apeak of the right to accrued vacation time as @kernted, ” we do 

not believe it ie vemtkd in the urual sense of that word. Rather, we are 

of the opinion that the right to accrued vacation time ia analogour to the 

right to retirement benefit@ under one of the several plans authorized by 

the various legirlaturea. Am to theme, the Supreme Court bar raid: 

“In our opinion, the rule that the right of a 

penrioner to receive monthly payment0 from the 

peaiion fund after retirement from service, or 

after his right to participate in the fund ha8 accrued, 

ir predicated upon the anticipated corLinuance of 

existing lawn, and ie auborainate to the right of the 

Legirlkure to abolish the pension eyetern, or diminish the accrued benefitr of pensioner6 theretinder. 

1~ undoubtedly the mound rule to be adopted. ” 

City of Dallaa v. Trammell, 101 S. W. 2d 1009, 1013 (Tex. 1937); and see 

Board of Managers of Harris County Hoop. Dief:.v~.Penaicin:Board. 449 

S. W. td 33 (Tex. 1970). 

The ,right# of an employee to .be paid for accrued vacation’:timc must 

depend, therefore, upon the state of the law at the time of hia eeparation 

from state employment. Aa to permom who die while employed by the 

State, the right* of their eatat& are determined~by Article 6252-8a, V.T.CS 

On the other hand, except insofar aa Article 6813b, V. T. C. S., makes the 

salary prov$aions of the bieonial appropriationa acta the general law, there 

im no over-all rtatute~providing for vacation time for living employees. 

In the Appropriation Acefor fiscrl’l972 (Senate Bill II, Regular Session, 62nd Legimlature), it was provided in Article V, 0 7 (p. V-35) that, 

“No employee of the State shall.be granted terminal annual or vacation 

leave subsequent to the effective day of the employee’s resignation, dismissal, or separation from State employment. I’ Attorney Gemrrl Opinion 

p. 610 
The Honorable Robert S. Calvert, page 3 (H-126) 

M-1075 (1972),found this language to be unambiguous and l uggented, as 

we have quoted above, ‘that the effective date of the termination be postponed until a time sufficient to include the accruid vacation. 

The Approprtation Act for fiscal 1973 (Senate Bill~~l,~ 3rd ‘Called 

Seseioa, 62nd Legislature), provided in $ 7,,~at p. ,V-34, “A State em- 

~@lbyee who resigni,’ his’ dirmiraed, or separrtes fro& State employment 

shall be entitled to be paid for ill vacition time duly accrued. I’ (imphasis 

added) This proviiion wan the rubject of Attorney General Opinions 

M-1252, M-1279, M-1280, M-12@ (1972). . Opinion ‘1252 ~held that because 

of the language. “shall be entitle’d fo~~be paid, ‘I a State einployec who was 

separated and had nbt been.Zully paid~ for all vacation time to whiclitie 

_~ ., 

.was entitled, had tiot been fully paid’for ~a11 iervices ,rendered land was 

entitled to reCeive :any balance due him’tipdn~termination af his employment. 

The 63rd Legislature, in~the Genera Appropriations Act for fiscal 

1974 and 1975, again rewrote 5 7 of Article V and the pertinent language 

with Eeference to accrued vacation timg is now. “A States employee who 

rcsigne, is dis&&sid. or scpa+Btdd from Sta%C. employment shall be en- 

,. 

titled to all vacation time duly.ticcrued. ” There is n6 provision there or 

eleewhere in the Abpropriatibn Act tir’thc penerrl’stitutes of the State that 

an employee. upon l eparation, shall ‘be paid for ,a’ccrued time. 

In construing thC”imgtiie of Article V. 5 7. we are not at liberty 

to arsume that the worde “to be paid” were omitted through inadvertance. 

To the iontiary., we must astnune that they were ititentionally omitted 

and that something in the history of the application of the 1973 Act caueed 

tbe Legidatur~ to change -its mind. 

It is the general rule that your office may not iraue warrants for an 

item for which there has been no appropriation. National,Bircuit Co. v. 

Sclte, 135 S. W. 2d 687 (Tex. 1940); State v. Angelins County. 150 S. W. td 

379 (Tex. 1941); Bullock v. Calvert, 480 S. W. 2d 367 (Tex. 1972). This is 

true even though an expenditure,;,may be exprer~sly:called for by a general 

law. See, for imtance. Attorney General Opinion C-579 (1966) hblding tht, 

even though the general law provided for fees for certain witnesses, ln the’ 

absence of an appropriation for thoee feea, they could not be paid. 

p. 611 

s . 
The Honorible Robert S. Calvert, page 4 (H-126) 

Am we construe the current wording of 5 7, it now provides that an 

employwe is entitled to ?ime, ” not to pay, and, in any event, no funds 

are appropriated to pay a petson who is-no longer an employee for accrued 

vacation time. 

We are of the opinion, therefore. that the office of the Comptroller of 

Public Accounts (except in camem of death) may not legally pay an employee, 

under the current Appropriations Act. for unused vacation time duly accrued 

on the date he separates from’state employment. Apparently the Legislature intended that vacation time be used for vacations, and’not to supplement 

income. The change in the ‘law, as we interpret it, should encourage emplbyees to take their vacations ‘aa they accrue. If that ,ic. hot pfictic*l. sqwwd0n 

ihpul&be effective :b~Cr dit&‘,whicb,wiU psrxtiit tht e+ploy.e:e tb,Tm~rirf hts :“; 

ic&iiiulated vacation. time prior to him separation. 

SUMMARY 

There’im neither any general law nor any appropriationin the Approprtrtion Act for 1974-1975 authorizing the payment of money to a state employee who 

iemigns, is dimmiased or otherwise separates from 

State employment (except in casem’of death) in lieu of 

accrued but ynusecj vacation time. 

‘APPROV$D: 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 612