The Attorney General of Texas 

November 23, 1971 

J,OHN L. HILL 

Mornay Gensfal 

Honorable George W. McNiel 

State Auditor 

Opinion Non. H-1096 

Sam Houston State Office 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 asked whether a short period between employment by two different state agencies constitutes a break 

in state employment sufficient to require payment for accrued 

leave. 

An employee who resigns, is dismissed 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 fcr any 

percentage of their unused sick leave. 

The Legislature's termination of the policy of payments 

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 the time and method by which they left their 

state jobs. While we question the policy which permits 

radically different treatment of employees o,n the 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 

P. 4497 
Honorable George W. McN 'iel - Paw 2 (x-1096) 

later. Article V, section 7e of both the 1975 and 1977 

Appropriations Act indicates how an employee's leave is handled when he transfers from one state agency to another. That 

section provides: 

A state employee who transfers directly 

from one State agency to another, shall 

be given credit by the receiving agency 

for the unused balance of this accumulated vacation and sick leave, provided 

that his employment with the State is 

uninterrupted. 

Article V, 9 7e, at 2851 (1975) and at V-33 (1977). 

Thus the issue becomes whether the e.leven day break 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, no writ). Such severance must 

occur by the-positive act of either employer or employee. 

Edwards v. Equitable Life Assurance Society, 177 S.W.Zd 574, 

577 (KY. Ct. App. 1944); Here the employee resigned and specifically asked that his resignation be treated as a termination. 

There was no attempt to seek leave without pay or to remain on 

the payroll until the employee's vacation time was exhausted. 

It is~well established that an employee's unused vacation time 

does not extend his term of employment, and that ~payment for 

accrued annual leave "has no significance in determinina 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 York v. Presbyterian 

Hospital- Dallas, 503 S.W.Zd 870, 874 (Tex. Civ. App. -- Dallas 

1973, writ ref'd n.r.e.1. 

In our opinion, this eleven day break in'state employment 

entitles the state employee to payment for accrued leave, without 

regard to the amount'of leave to which the employee is entitled 

at the time of his separation, and without~regard to whether the 

employee subsequently resumes state employment. Accordingly, we 

believe that a short period between employment by two different 

state agencies constitutes~an interruption in state employment 

sufficient to require payment for accrued leave. 

P. 4498 
I 

: - .’ 

Honorable George W. McNiel - Page 3 (H-1096) 

SUMMARY 

A short period 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 

p. 4499