DAN MORALES 

ATTORNEY GES’ERAL 

QBffice of tly 8ttornep &nerd 

@ate of IEexas 

June 17,1992 

Honorable Gonxalo Barrientos 

Chairman 

Committee on Nominations 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 78711 

Opinion No. DM-129 

Re: Whether a home rule city may, 

consistent with article III, section 53 of the 

Texas Constitution, create a “sick leave 

pool” of sick leave contributed by 

employees for use by employees who have 

exhausted their sick leave (RQ-287) 

Dear Senator Barrientos: 

Your question involves the authority of a municipality to create a “sick leave 

pool” to which municipal employees may presently and in the future contribute 

previously acquired sick leave time and from which other employees may draw if 

they are ill but have no sick time left. t We are informed that you are specifically 

concerned with the powers of a home rule city, and we will limit our discussion 

accordingly. You ask whether a home rule city may create such a “sick leave pool” 

without offending article III, section 53 of the Texas Constitution. Before reaching 

the constitutional issue, we will consider the legislative power of a home rule city to 

implement a sick leave pool. 

Home rule cities possess the full power of self-government, provided that 

they may not adopt a charter provision or ordinance that is inconsistent with the 

constitution or general laws of the state. Tex. Const. art. XI, 9 5; see Lotver Colorado 

River Auth. v. Ci@ of San Marcos, 523 S.W.2d 641 (Tex. 1975); Forwood v. City of 

Taylor, 214 S.W.2d 282 (Tex.~ 1948). Thus, home rule cities look to acts of the 

legislature not for grants of authority but only for limitations on their powers. Burc!r 

v. City of San Antonio, 518 S.W.2d 540,543 (Tex. 1975); Forwood, 214 S.W.2d 282. 

Home rule cities are as a general matter authorized to establish compensation and 

htidc 6252~Se, V.T.C.S., requires each state agency to establish a sick leave pool to benefit 

employees who suffer a catastrophic illness or injury. 

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Honorable Gonxalo Barrientos - Page 2 (DM- 12 9 1 

conditions of employment of their employees, including sick leave.2 See Byrd V. City 

of Dallas, 6 S.W.2d 738 (Tex. 1928); Attorney General Opinion H-1303 (1978). A 

home rule city therefore has authority to implement a voluntary sick leave pool for 

its employees by adopting any charter provision or ordinance necessary to establish 

it. 

We next address article III, section 53 which provides as follows: 

The Legislature shall have no power to grant, or to 

authorize any county or municipal authority to grant, any extra 

compensation, fee or allowance to a public officer, agent, 

servant or contractor, after service has been rendered, or a 

contract has been entered into, and performed in whole or in 

part; nor pay, nor authorize the payment of, any claim created 

against any county or municipality of the State, under any 

agreement or contract, made without authority of law. 

Tex. Const. art. III, 3 53; see also id. 3 44 (similar provision applicable to state). 

Sick leave is a form of compensation or an allowance within this provision. 

See Ward v. City of San Antonio, 560 S.W.2d 163 (Tex. Civ. App.-San Antonio 1977, 

writ refd n.r.e.). Article III, section 53 of the Texas Constitution bars a city from 

implementing a sick leave pool in a way that grants an additional benefit to its 

employees for work already performed. Attorney General Opinion JM-1160 (1990). 

The courts have addressed the constitutionality under article III, sectiqn 53 

of sick leave provisions of the firemen’s and policemen’s civil service statute. Ward, 

560 S.W.2d 163; Austin Fire & Police Dep’ts v. City of Austin, 224 S.W.2d 337 (Tex. 

Civ. App.-Austin 1949), afd in part and rev’d in part, 228 S.W.2d 845 (Tex. 1950). 

Although these decisions concern specific provisions of law, they can provide.some 

general guidance about the question before us. 

*ff a home rule city has adopted chapter 143 of the Local Government Code, providing civil 

service protection for policemen and fErnen, it must comply with the code provision on sick leave. See 

Local Gov’t Code 0 143.045. Since you do not inquire about civil service employees we will not 

consider whether their inclusion io a voluntary sick leave pool would bc consistent with chapter 143 of 

the Local Government Code. 

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Honorable Gonxalo Barrientos - Page 3 ( DM-12 9 1 

In Austin Fire & Police Departments, firemen and policemen sought a 

declaratory judgment construing the sick leave provisions of the newly enacted civil 

service statute, which allowed firemen and policemen to accumulate up to 90 days 

sick leave and to be paid on retirement for accumulated sick leave.3 The plaintiffs 

claimed that firemen and policemen employed before the effective date of the civil 

service statute were entitled to accumulate sick leave from their date of 

employment, not merely from the effective date of the statute. The court of appeals 

held that the entitlement to sick leave benefits under the statute began with the 

effective date of the statute, not the date of employment. “Since retroactive sick 

leave benefits would have the effect of granting extra allowance to a public servant, 

after the services had been rendered, such an act would not be constitutional.” 224 

S.W.2d at 339 (citing Tex. Const. art. III, 6 53). The Texas Supreme Court agreed 

with the court of appeals that the sick leave benefits provision applied only from the 

effective date of the statute, stating that this construction of the statute made it 

unnecessary to reach constitutional questions.4 

A subsequent case resulted from a 1975 amendment that removed the 90-day 

limitation on accumulation of sick leave and allowed payment upon retirement for 

all accumulated sick leave without limit. Ward, 560 S.W.2d 163. The court held that 

retiring employees could not be paid for more than 90 days of the unused sick leave 

they had accumulated prior to the effective date of the amendment, because “[t]he 

payment of more than 90 days sick leave accruing prior to September 1, 1975, would 

be in violation of Art. 3,s 53 of the Texas Constitution.” Id. at 166. 

Thus, a sick leave pool may not be created in a way that it provides 

additional benefits in compensation for work already performed. For example, if a 

city employee had exhausted his sick leave and taken unpaid sick leave before the 

city created a sick leave pool, he could not draw on the pool as a means of 

reimbursement for those past unpaid sick leave days. The sick leave pool may, 

however, be used to increase an employee’s potential sick leave benefit 

prospectively. See Attorney General Opinion JM-1160 (a county policy to become 

?he civil service law under consideration was formerly codiied as article l269m. V.T.C.S. It 

is now codiied as chapter 143 of the Local Government Code. The sick leave provision was formerly 

section 26 of article 12&n, V.T.C.S.; the relevant provisions arc now found in section 143.045 of the 

Local Government Code. 

*The Texas Supreme Court reversed the court of appeals on another issue that is not relevant 

to this opinion. See Austin Fire&Police Departments v. City ofAustin, 22.3 S.WSd 845, S47 (Tcx. 1950). 

p. 669 
Honorable Gonxalo Barrientos - Page 4 ( DM- 12 9 1 

effective prospectively that grants additional sick leave to’county employees does 

not violate article III, section 53). Once a sick leave pool is established, this 

employee benefit becomes a term of employment with the city, and employees 

receive its benefits prospectively, as’compensation for work performed after it is 

established. Byrd, 6 S.W.2d 738. 

When an employee contributes to the sick leave pool some of his sick leave 

accumulated before the pool was established, he is not receiving an additional 

benefit or additional compensation for work performed in the past. On the 

contrary, he voluntarily relinquishes the right to use those days of paid sick leave 

himself and subjects them to the conditions the city has developed for use of the sick 

leave pool. Thus, the employee’s contribution to the pool of sick leave acquired 

before the pool was established will not cause the city to violate article III, section 

53. Whether other terms of a particular sick leave pool are consistent with article 

III, section 53 of the Texas Constitution must be decided on a case-by-case basis. 

SUMMARY 

A home rule city has authority to create a “sick leave pool” 

to which municipal employees may contribute previously 

acquired sick leave and from which other employees may draw if 

they are ill but have no sick time left. If the benefits of the sick 

leave pool are available only prospectively, it will not violate 

article III, section 53 of the Texas Constitution. When an 

employee contributes to the sick leave pool sick leave 

accumulated before the pool was established, he is not receiving 

additional compensation for work previously performed; thus, 

he is not involved in a violation of article III, section 53 of the 

Texas Constitution. 

DAN MORALES 

Attorney General of Texas 

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