# The Attorney General ofTexas

November 23, 1971 J,OHN L. HILL MornayGensfal

Honorable George W.McNiel

State Auditor Opinion Non.H-1096
Sam Houston StateOffice Building Re: Whether a short P. 0. Box 12067 Austin, Texas 7871.1 period between employment by two different state agencies constitutes a Dear Mr. McNiel: break in state employment.
You have askedwhether a short period between employment by two different state agencies constitutes abreak in state employment sufficient to require payment foraccrued leave.
An employee who resigns, isdismissed or is separated from state employment is entitled to receive payment for any unused vacation time he has accumulated. General Appropriations Act,Acts 1975, 64th Leg., ch. 743, at 2949. Persons whose'employment with the state ended September 1, 1975, orlater were also entitled to be paid for one-half of their accumulated sick leave. General Appropriations Act, Acts 1975,~ch. 743, at 2850. This policy was terminated on August 31, 1977. and persons leaving state employment after that date are not entitled to be paid fcrany percentage of theirunused sick leave. The Legislature's termination of the policy ofpayments for sick leave created financial incentives to terminate state employment before August 31, 1977, with the result that similarly situated employees were treated differently depending on thetime andmethod bywhich they left their state jobs. Whilewe question the policy which permits radically different treatment of employees o,nthe largely fortuitous circumstance of how and'when an individual leaves the State's employ,we are not at liberty to ignore or add to the statutory language adopted by the Legislature.
Your question involves an employee who resigned from the State Auditor's Office on June 36, 1977, and had secured employment with another state agency beginning eleven days

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later. Article V, section 7e of both the 1975 and 1977 Appropriations Act indicates how an employee's leave ishandled when he transfers from one state agency toanother. That section provides:

A state employee who transfers directly from oneState agency to another, shall be given credit by the receiving agency for theunused balance of this accumulated vacation and sick leave, provided that hisemployment with the State is uninterrupted. Article V, 9 7e,at 2851 (1975) and atV-33 (1977). Thus the issuebecomes whether the e.levendaybreak between the two jobs constituted an interruption in state employment. "Termination of employment" has been defined as "the complete severance of the relationship of employer and employee." Pan American Life Insurance Co. v. Garrett, 199 S.W.Zd 819, 821 (Tex.Civ. App. --El Paso 1946, nowrit). Such severance must occur by the-positive act of either employer or employee. Edwards v. Equitable Life Assurance Society, 177S.W.Zd 574, 577 (KY.Ct. App. 1944); Here the employee resigned and specifically asked thathis resignation be treated as a termination. There was no attempt to seek leave without pay or toremain on the payroll until the employee's vacation timewas exhausted. It is~well established that an employee's unused vacation time does not extend his term of employment, and that~paymentfor accrued annual leave "has no significance indeterminina Lhe date" of separation from employment. Funderburk v.Metropolitan Life Insurance Co., 146 So.Zd 710, 715 (La.Ct.App. 1962); Wyatt v. Security Benefit Life Insurance Co., 263 P.2d 243. 246 (Kan. 1955). See Mutual Life Insurance Co. of New Yorkv.Presbyterian Hospital- Dallas, 503 S.W.Zd 870, 874 (Tex.Civ.App. -- Dallas 1973, writ ref'd n.r.e.1.
Inour opinion, this eleven day break in'state employment entitles the stateemployee to payment for accrued leave, without regard to the amount'of leave towhich the employee is entitled at the time of his separation, and without~regard towhether the employee subsequently resumes state employment. Accordingly, we believe that a shortperiod between employment by twodifferent state agencies constitutes~an interruption in stateemployment sufficient to requirepayment for accrued leave.

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: - .’ Honorable GeorgeW. McNiel -Page 3 (H-1096)

SUMMARY
A shortperiod between employment by two different state agencies constitutes an interruption in state employment sufficient to require payment for accrued leave. Very truly yours,

Attorney General of Texas APPROVED:

DAVID H. KENDALL, First Assistant

C. ROBERT H~?l'fi.Chairman Opinion Comittee jst

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