Dr. David Wade Opinion No.M-'1075 

Commissioner 

Texas Department of 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 

appropriation bill are 

entitled to be compensated 

for accumulated vacation 

in the event of their 

resignation, dismissal or 

separation from State 

Dear Dr. Wade: employment. 

You request our opinion on how accumulated vacation 

time should be treated when 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 correctness when written based on the prevailing law existing at 

the time they were issued. 

However, in 1969 the 61st Legislature enacted House Bill 

774 (codified as Article 6252-Sa, Vernon's Civil Statutes) and 

changed the language in the appropriation bill #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 appropriation bills that were passed by the 60th 

Legislature and the 61st Legislature. 

Article V, Section 7 of the General Appropriations Act 

of the 60th Legislature (Acts 60th Leg., 1st C.S., 1968, p. 3631, 

in its relevant portion,reads as follows: 

"Sec. 7. EMPLOYEE VACATION AND 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 normal working day for each month of service, 

-5266- 
Dr. David Wade, page 

not to exceed 

work weeks in 

2 (M-1075) 

a total vacation of two normal 

any one fiscal year." 

Article V, Section 7 of the General Appropriations Act 

of the 61st Legislature (Acts 61st Leg., 2nd C.S., 1969, p. 

10151, in its relevant part, reads as follows: 

"Sec. 7. EMPLOYEES VACATION AND LEAVES. 

Annual employees of the State shall, 

iut deduction in salary, be entitled to a 

withvacation of two normal work weeks in any one 

fiscal year, such entitlement to be accrued 

proportionately for each month of service 

during the year." (Emphasis added.) 

This identical language is also stated in the current General 

Appropriation Act (Acts 62nd Leg. R.S., 1971, p. 3796). 

We, note that the phrase "such entitlement to be accrued 

proportionately for each month of service during the year" was 

added by the 61st Legislature. The key word is accrued. 

Webster's Third New International Dictionary defines 

the word accrue as follows: "To come into existence as an 

enforceabmim: vest as a right." 

The 61st Legislature also.enacted Article 

2 of which reads: 

'Upon the death of a state employee, the 

state shall pay his estate for all of the 

employee's accumulated vacation-a~ve and 

one-half of his accumulated sick leave. The 

for 

6252-Sa, Sec. 

payment shall be calculated at the rate of 

compensation being paid the employee at the 

time of his death." (Emphasis added.) 

This Act became effective on Way 14, 1969. 

Our opinion is that vacation entitlement is a benefit and 

right that accrues proportionately for each month of service during the year and becomes a vested right of the employee that cannot be destroyed or impaired by his resignation, dismissal or 

separation from State employment. It is a right that becomes 

vested in him as it is earned and a State employee should be compensated for all vacation time duly accrued. The right to receive 

pay for this accumulated vacation leave survives to his estate. 

These accumulations of rights are limited by statute. See Attorney 

General Opinion M-984 (1971). 

-5267- 
. 

Dr. David Wade, page 3 (M-1075) 

The right accrues under the statutes and contract of 

employment. It is a contract right protected by 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 entitlement was now a'right 

granted by 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 accomplished effective on a date which will 

permit the employee to be paid for his accumulated vacation. 

All opinions on this subject prior 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-