Dr. David Wade OpinionNo.M-'1075

Commissioner Texas Departmentof Mental Re: Whether State employees Health and Retardation covered under the proBox 12668, Capitol Station visions of Article II, Austin, Texas 78711 Section 7 of the present appropriationbill are entitled to be compensated for accumulatedvacation in the event of their resignation,dismissal or separation from State Dear Dr. Wade: employment.

You request our opinion on how accumulatedvacation time shouldbe treatedwhen an employee resigns or is dismissed or separated from State employment.

This office has issued a number of opinions on this question. We are not now called upon to question their correctnesswhen written based on the prevailing law existing at the time theywere issued. However, in 1969 the 61st Legislature enacted House Bill 774 (codifiedas Article 6252-Sa,Vernon's Civil Statutes) and changed the language in the appropriationbill #at governed vacation time.

In order to compare the language change in vacation entitlement that occurred in 1969,we copy the relevant portions of the general appropriationbills thatwere passed by the 60th Legislature and the 61st Legislature. Article V, Section 7 of the General AppropriationsAct of the 60th Legislature (Acts60th Leg., 1st C.S., 1968, p. 3631, in its relevantportion,readsas follows:

"Sec. 7. EMPLOYEEVACATIONAND LEAVES. Annual employees of the State shall,with- &t deduction in salary,be entitled to a vacation that is equivalent to not more than one normalworking day for each month of service, -5266-Dr. DavidWade, page

not to exceed work weeks in 2 (M-1075)

a total vacation of two normal any one fiscalyear." Article V, Section 7 of the GeneralAppropriationsAct of the 61st Legislature (Acts61st Leg., 2nd C.S., 1969,p. 10151, in its relevant part, reads as follows:

"Sec. 7. EMPLOYEES VACATIONAND LEAVES. Annual employees of the State shall, iut deduction in salary,be entitled to awithvacation of two normalwork weeks in any one fiscalyear, such entitlement tobe accrued proportionately for each month of service during the year." (Emphasisadded.) This identical language is also stated in the current General AppropriationAct (Acts 62nd Leg. R.S., 1971,p. 3796).

We,note that the phrase "such entitlement to be accrued proportionately for each month of serviceduring the year" was added by the 61st Legislature. The key word is accrued.

Webster's Third New InternationalDictionarydefines the word accrue as follows: "To come into existence as an enforceabmim: vest as a right."

The 61st Legislature also.enactedArticle 2 of which reads: the

'Upon the death of a state employee, state shall pay his estate for all of the employee's accumulatedvacation-a~ve and one-half of his accumulated sick leave. The for 6252-Sa, Sec.

payment shallbe calculated at the rate of compensationbeing paid the employee at the time of his death." (Emphasisadded.) This Act became effective on Way 14, 1969. Our opinion is that vacation entitlement is a benefit and right that accruesproportionately for each month of service during the year and becomes a vested right of the employee that cannot be destroyed or impairedby his resignation,dismissal or separation from State employment. It is a right thatbecomes vested in him as it is earned and a State employee shouldbe compensated for all vacation time duly accrued. The right to receive pay for this accumulatedvacation leave survives to his estate. These accumulationsof rights are limitedby statute. See Attorney General Opinion M-984 (1971).-5267-.

Dr. DavidWade, page 3 (M-1075)

The right accrues under the statutes and contract of employment. It is a contract right protectedby both the Texas and United States Constitutions. Texas Constitution,Art. I, Sec. 16; United States Constitution,Art. I, Sec. 10; Mellin er vs. City of Houston, 68 Tex. 37, 3 S.W. 249, 252 (1887 TT--e Our Opinions M-731 (November,1970) and M-811 (March, 1971) recognized that vacation entitlementwas now a'right grantedby statute and held that such right passed upon the death of the employee to his estate.

It is, therefore, the opinion of this office that a State employee is entitled to be paid for all, vacation time duly accrued and all resignations,dismissals or separations from State employment must be accomplishedeffective on a datewhich will permit the employee to be paid for his accumulatedvacation. All opinions on this subjectprior to enactment of Article 6252- 8a, are no longer applicable. SUMMARY Accrued vacation time of state employees is a vested right of those employees and of their estates. Vedtruly yours,

neral of Texas Prepared by Linward Shivers Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman John Reeves Roger Tyler Lewis Jones Rex H. White, Jr.

-5268-Dr. David Wade, page 4 (M-1075)

SAMUEL,

D. MCDANIEL Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

,-5269-