JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin. TX. 76711. 2546 

51214752501 

Telex 9101674.1367 

Telecopier 51214750266 

1607 Main St.. Suite 1400 

Dallas. TX. 75201.4709 

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El Paso. TX. 799052793 

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r 

.-LO Dallas Ave.. Suite 202 

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Lubbock. TX. 79401.3479 

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San Anlonw,. TX. 76205-2797 

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An Equal Opportunityi 

Affirmative Action Employer 

r 

The Attorney General ( 

Mr. William P. Daves, Jr. 

Chairman 

State Board of Insurance 

1110 San Jacinto 

Austin, Texas 78706 

Dear Mr. 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 for annual leave time under 

the provisions of article 6252~8b, V.T.C.S.? 

Article 6252-8b. V.T.C.S., provides in pertinent part: 

Section 1. A state employee who resigns, is 

dismissed, or separated from state employment 

shall be entitled to be 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 six months. (Emphasis added). 

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 

payment under article 6252-8b. The opinion reasoned that both article 

V. section 7 of the General Auorooriations Act 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 is not a "state employee." 

P. a5 
Mr. William P. Daves, Jr. - Page 2 (JM-19) 

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 least partially erroneous. 

In reaching its conclusions, Attorney General Opinion MW-517 

relied upon prior attorney general opinions. Attorney General Opinion 

M-1279 (1972) was the first such opinion to hold explicitly that 

article V, section 7 of the General Appropriations Act does not apply 

to "state officers." This opinion pointed out that under the 1971 

appropriations act, Acts 1971, Sixty-second Legislature, 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 article V, section 7. In so doing, 

it impliedly took the position that "state officer" and "state 

employee" are mutually exclusive categories. 

Attorney General Opinions M-1280 (1972) and H-715 (1975) were the 

next two opinions to conclude that article V. section 7 does not 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 regarded as a virtual truism, even though no reasoning 

or authorities had ever been marshalled 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. this article has provided 

in relevant part as follows: 

Section 1. 'Employee' as used in this Act 

means any appointed officer or employee in a 

department of the State who is employed on a basis 

or 8 position normally requiring not less than 900 

hours per year, but shall not include members of 

the Legislature or any incumbent of an office 

normally filled by vote of the people; [and others 

not relevant here]. 

Sec. 2. Upon the death of a state employee, 

the state shall pay his estate for all of the 

p. 86 
.‘ . 

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 

compensation being paid the employee at the time 

of his 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 Appropriations Act was "Employees Vacations 

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's accrued but 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 concluded that the definition of "state employee" set forth in the 

latter provision should also apply to the former. In this context, we 

note that it hardly seems likely that the legislature which enacted 

article 6252-8a intended to afford the estates of certain deceased 

state employees an entitlement to something that did 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 

accrue vacation time under that provision. 

We now turn to article 6252-8b. enacted in 1975. The language of 

this provision is virtually identical to the language of 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, for purposes of this section, "state employee" should be 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 essentially the 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 

Appropriations Act 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 the meaning of these provisions. To the extent that 

they hold or indicate otherwise, Attorney General Opinions M-1279, 

M-1280, H-715, MW-517, and any others are overruled. 

p. 87 
Mr. William P. Daves, Jr. - Page 4 (JM-19) 

’ I 

. . 

‘. 

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 that would inevitably occur if we were to 

conclude that decisions as to whether a particular individual is 

within article V. section 7 and article 6252-8b should turn on whether 

he is an "officer" or "employee" under the Aldine test. Under this 

test, some administrative heads of agencies may be in one category, 

and some in the other. Just as we do not believe 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 two provisions to turn solely upon the nature of the duties and 

responsibilities of the individual involved. 

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 appointed by 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 to payments for accrued but unused time under article 6252-8b. 

SUMMARY 

The commissioner of insurance is entitled to 

accrue vacation time under article V, 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 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

p. 88 
Mr. William P. Daves, Jr. - Page 5 (JM-19) 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Jim Moellinger 

Charmaine Rhodes 

p, 89