JIM MATTOX Attorney General

Supreme Court Building P. 0. Box 12546 Austin. TX. 76711. 2546 51214752501 Telex 9101674.1367 Telecopier 51214750266

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An Equal Opportunityi Affirmative Action Employer

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# The Attorney General (

Mr. William P. Daves, Jr. Chairman State Board of Insurance 1110SanJacinto Austin, Texas 78706

DearMr. Daves:
You ask: lle: Whether the commissioner of insurance is an "employee" or "officer" for purposes of article 6252-8b,V.T.C.S.

Is a commissioner of insurance, appointed pursuant to the provisions of article 1.09 of the Texas Insurance Code, an 'employee' or an 'officer' of the state of Texas for purposes of accrual of and payment forannual leave timeunder theprovisionsof article 6252~8b,V.T.C.S.? Article 6252-8b.V.T.C.S.,providesinpertinentpart:

Section 1. A state employee who resigns, is dismissed, or separated from state employment shallbe entitled tobe paid in a lump sum for all vacation time duly accrued at the time of separation from state employment; provided the employee has had continuous employment with the state for sixmonths. (Emphasisadded).
In your letter to this office,you stated that Attorney General Opinion MU-517 (1982)prompted your question. In that opinion, this office held that the commissioner of education is not entitled to accrue vacation time under article V. section 7 of the General Appropriations Act, and that he is therefore ineligible for any paymentunder article 6252-8b. The opinionreasoned thatboth article V. section 7 of the General AuorooriationsAct and article 6252~8b apply only to ';t *

"state employees, and that under Aldine Independent School District v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). which holds that an individual is a "state officer" if he exercises any sovereign function of government for the benefit of the public and largely independent of the control of others, the commissioner of education isnot a "state employee."

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Your question caused us to reexamine the reasoning and conclusions of Attorney General Opinion MW-517 and come of the prior opinions upon which it relied. We now conclude that these opinions are at leastpartially erroneous.
In reaching its conclusions, Attorney General Opinion MW-517 reliedupon prior attorneygeneral opinions. Attorney General Opinion M-1279 (1972) was the first such opinion to hold explicitly that articleV, section 7 of the GeneralAppropriationsAct does not apply to "state officers." This opinion pointed out that under the 1971 appropriationsact,Acts 1971,Sixty-secondLegislature, chapter 1047. article V, section 7, at 3796. only "annual employees of the State" accrued vacation time. Then, without defining the relevant terms or offering any reasoning, the opinion simply asserted that "state officers"are outside the ambit of articleV, section 7. In so doing, it impliedly took the position that "state officer" and "state employee"aremutually exclusive categories. AttorneyGeneral OpinionsM-1280 (1972)and H-715 (1975)were the next two opinions to conclude thatarticleV. section 7 doesnot apply to "state officers." Neither opinion reached this conclusion after independent analysis, however; on the contrary, both simply restated the conclusion reached in Attorney General Opinion M-1279 without questioning or reexamining it. By the time that Attorney General Opinion MW-517 was decided, therefore, this conclusion, having been stated in at least three opinions issued during a ten-year time span, had come to be regardedas a virtual truism, even thoughno reasoning or authoritieshad everbeenmarshalled to support it.
We have now reexamined this conclusion, and we conclude that it is incorrect. Three years before Attorney General Opinion M-1279 was issued, the legislature enacted article 6252-8a, V.T.C.S. Acts 1969, 61st Leg., ch. 217. at 633. The article was amended in 1971. Acts 1971. 62nd Leg., ch. 106, Il.at 866. Since 1971. thisarticlehas provided in relevantpart as follows:

Section 1. 'Employee' as used in this Act means any appointed officer or employee in a departmentof the Statewho is employedon abasis or 8 positionnormallyrequiringnot less than 900 hours per year, but shall not includemembers of the Legislature or any incumbent of an office normally filledby vote of the people; [andothers not relevanthere].
Sec. 2. Upon the death of a state employee, the state shall pay his estate for all of the

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. Mr. William P. Daves. Jr. - Page 3 (JM-19)

P employee's accumulated vacation leave and for one-half of his accumulated sick leave. The payment shall be calculated at the rate of compensationbeing paid the employee at the time ofhis death. Attorney General Opinion M-1279 did not completely overlook article 6252-8a,but we believe that it did fail to attach sufficient importance to that article. Then, as now, the subject of article V, section 7 of the General AppropriationsAct was "EmployeesVacations and Leaves," including sick leave. The subject of article 6252-8a was, and is, the entitlement of the estate of a deceased "state employee" to payments for that employee'saccruedbut unused vacation and sick leave. In our opinion, because article V, section 7 and article 6252-8a dealt with the same general subject, viz., the vacation and sick leave benefits of a "state employee,"Attorney General Opinion M-1279 should have read the two provisions together and concludedthat the definitionof "stateemployee" set forth in the latterprovision shouldalso apply to the former. In this context,we note that it hardly seems likely that the legislaturewhich enacted article 6252-8a intended to afford the estates of certain deceased state employeesan entitlement to something thatdid not exist. This conclusion follows if one concludes that some individuals who are included in the definition of "state employee" set forth in article 6252-8a are not "state employees" within the meaning of article V, section 7 of the General Appropriations Act and therefore cannot accruevacation timeunder thatprovision.
We now turn toarticle 6252-8b. enacted in 1975. The languageof this provision isvirtually identical to the languageof a portion of article V, section 7 of the 1971 appropriations act with which Attorney General Opinion M-1279 was concerned. We have already said that, forpurposesof this section, "stateemployee" shouldbe defined as it is defined in article 6252-8a. Because the language of this portion of article V, section 7 and the language of article 6252-8b are essentiallythe same, we believe that "state employee,"within the meaning of the latter provision, was intended to have, and has, the same meaning.
We therefore conclude that the article 6252-8a definition of "employee" also applies to article V, section 7 of the General AppropriationsAct and to article 6252-8b,V.T.C.S. The terms "state officer" and "state employee" are, in other words, not necessarily mutually exclusive. An individual may be an "officer" under Aldine Independent School District v. Standley. m, and still be an "employee"within themeaning of theseprovisions. To the extent that they hold or indicate otherwise, Attorney General Opinions M-1279, M-1280, H-715,MW-517, and any othersare overruled.

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In our opinion, our conclusion is. for several reasons, the most reasonable one. First, it means that three legislative enactments which deal with the same general subject apply to the same individuals. Second, it accounts for the legislature's failure to define "state employee" when it enacted article 6252-8b. Finally, it avoids the anomalous result thatwould inevitablyoccur if we were to conclude that decisions as to whether a particular individual is within articleV. section 7 and article 6252-8b should turn onwhether he is an "officer" or "employee" under the Aldine test. Under this test, some administrative heads of agenciesmay be in one category, and some in the other. Just aswe do notbelieve that the legislature intended that some "officers" would be within the ambit of article 6252-8a but outside the scope of article V, section 7 and article 6252-Eb, we do not think that it intended the applicability of the latter twoprovisions to turn solelyupon thenature of thedutiesand responsibilitiesof the individualinvolved. The remaining question concerns the application of these provisions to the commissioner of insurance. Under article 1.09 of the Insurance Code. the commissioner is appointedby the State Board of Insurance. In our opinion, he is within the article 6252-8a definition of "employee." Accordingly, he is entitled to accrue vacation time under article V. section 7 of the appropriations act, and topayments foraccruedbut unused timeunder article 6252-8b.
SUMMARY The commissioner of insurance is entitled to accruevacation timeunder articleV, section 7 of the General Appropriations Act and to receive payments for accrued but unused leave time under article 6252-8b. Attorney General Opinions M-1279, M-1280, H-715 and MW-517 are overruled to the extent that they

JIM MATTOX AttorneyGeneral of Texas TOM GREEN FirstAssistantAttorney General
DAVID R. RICHARDS ExecutiveAssistantAttorney General

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Preparedby Jon Bible AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE
SusanL. Garrison, Chairman Jon Bible Rick Gilpin JimMoellinger CharmaineRhodes

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