DAN MORALES

ATTORNEY GES’ERAL 

## QBffice

oftly 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 ofthe state. Tex. Const. art. XI, 95;seeLotver Colorado River Auth. v. Ci@ofSanMarcos, 523 S.W.2d 641 (Tex. 1975); Forwoodv. Cityof Taylor,214 S.W.2d 282 (Tex.~1948). Thus, home rule cities look to acts of the legislature not for grants ofauthority but only for limitations on their powers. Burc!r
v.CityofSanAntonio,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., requireseachstateagencytoestablishasickleave pool to benefit employees

whosufferacatastrophic

illnessorinjury.

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conditions of employment oftheir employees, including sick leave.2 SeeByrd V.City ofDallas,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 53which provides asfollows:

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 oflaw.

Tex. Const. art. III, 353;see alsoid. 344 (similar provision applicable to state).

Sick leave is a form of compensation or an allowance within this provision. SeeWardv.CityofSanAntonio,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 ofthe firemen’s and policemen’s civil service statute. Ward, 560S.W.2d 163;AustinFire &PoliceDep’tsv.CityofAustin,224 S.W.2d 337 (Tex. Civ. App.-Austin 1949), afd inpartandrev’dinpart, 228S.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, itmust 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 143of the Local Government Code.

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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 ofthe 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, 653). 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 1975amendment 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 ofmore than 90 days sick leave accruing prior to September 1, 1975,would be in violation ofArt. 3,s 53ofthe 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 lawunder consideration was formerly codiied as article l269m. V.T.C.S. It is now codiied as chapter 143ofthe Local Government Code. The sick leave provision was formerly section 26of article 12&n, V.T.C.S.; the relevant provisions arc now found in section 143.045of the Local Government Code.

*The Texas Supreme Court reversed the court of appeals on another issue that isnot relevant to thisopinion. SeeAustin Fire&Police Departments v. CityofAustin, 22.3S.WSd 845,S47(Tcx. 1950).

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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,6S.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 ofthe 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 ofthe 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 isnot 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 ofTexas

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