Honorable Robert S.Calvert Opinion No. M-1252

Comptroller of Public Accounts State Finance Building Re: Must a State employee who Austin, Texas 78701 resigns, isdismissed, or is separated from State employment be paid for all duly accruedvacation time, Dear Mr. Calvert: and related questions.

Your request for an opinion reads as follows: "Ihereby request **your** official opinion in answer to the following questions: "1
. Must a State employee who resigns, is dismissed, or separated from State employment be paid forall duly accrued vacation time? "a. If the above answer is in the affirmative, when should the payment bemade? "2. Must the salary of a line-item employee be paid solely from a line-item appropriation or may he be paid inwhole or inpart frommonies which theLegislature has prohibited inwhole or in part to be paid for salary or wages? "a. Sec. 10. LIMITATIONS ON USE OP OTHER EXPENSE FUNDS **FOR** PAYING SALARIES AND WAGES. Funds appropriated inArticles I, II, and III of this Act, or for the Central Education Agency inArticle IV of thisAct, in items designated for consumable supplies andmaterials, current and recurring operating expense or capital outlay shallbe expended only for items set out in the Comptroller's Manual ofAccounts, Expenditure Classification, effective Xovember 1, 1965, as amended, andnumbered from i0 CO 19 for 'consumable su;?lies and Lmater;dlS,'2C rl?zoug!: 25 for 'curreritand recurring operating expense,' and 60 to 69 for 'capital

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Hon. Robert S. Calvert, 

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outlay,' It is further provided that such terms shall not include expenditures for personal services including salaries and wages, unless the language of those items explicitly authorizen such use." Article 6252-8a, Vernon's Civil Statutes, provides in part: "Sec. 2. Upon the death of a state employee, the state shall pay his estate for ali of the employee's accumulated vacation leave and for onehalf 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. "Sec. 3. Funds appropriated for salaries to thedepartment or agency forwhich the employee worked shall be used inmaking 

### paymentsprovided **for** by this **Act. ”**  Section 7ofArticle 

### Vof thecurrentGeneral Act provides in part at pageV-34:

"If a State employee transfers directly 

### from one State agency to another, he shall be entitled to credit with the newly 

### employingagency **for** his accumulated but unused vacation entitlement, provided that his employment with the State i8 uninterrupted. A State 

### employeewho **remions&** isdismissed, or 

### separate6fromStateemployment shall be entitled to

### bepaidforallvacation time duly accrued." (Rmphasie

### added.) Appropriation

The underlined portion of the 

### abovequotedriderdidnot appear in the General Appropriation **Act** beginning September 1, 1971; instead itwas provided:

"If a State employee transfers directly **from** one State **agency** to another, 

### he shallbe entitled to credit with the newly employing **agency** for his accumulated but unused vacation entitlement, provided that his employment with the State is uninterrupted. NC empioyee of the State shall be craritecterm;nal annsal or vacation leave subseauent to the effective day of the employee's

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resignation, dismissal, or separation from State employment." (Emphasis added.) Accrued vacation entitlement is a vested right of State employees and of their estates. Attorney General's Opinion M-1075 (1972)and authorities cited therein.

It is now specifically provided that a State employee who resigns, isdismissed or separates from State employment "shall be entitled to be paid" for all vacation time duly accrued. Therefore it is our opinion that an individual who is no longer on a State payroll has not been fully paid all the compensation for services rendered the State that he is legally entitled to untii such individual has been paid for allvacation time which has accrued to such individual.

In answer to your first question you are therefore advised that a State employee who resigns, isdismissed or separated from State employment must be paid for all duly accrued vacation time. Such payment is due and payable on the date the State employee resigns, isdismissed, or is separated from State employment, which should be submitted on themonthly payroll for the month inwhich the separation will occur; i.e., employment terminated midnight December 31st, payment is submitted on the December payroll. Article 6813b, Vernon's Civil Statutes, provides in part:

"From and after the effective date of this Act, all salaries of all State officers and State employees, including the salaries paid any individual out of the General Revenue Fund, shall be in such sums or amounts asmay be provided for by the Legislature in the biennial Appropriations Act. . . ." Since payment for all duly accrued vacation time ispayment for services rendered, it is our opinion that such payment constit'utessalaries within themeaning ofArticle 6813b. Therefore suck payment may only bemade from fundsmade available for expenditure by the Legislature in theAppropriations Act for salaries; i.e., Attorney General Department appropriation, payment for accrued vacz::cn forAssistant Attorney General, may be paid from Item 6or .;trczr,eyGeneral 'sOperating Fund of the current Appropriations Bill. Er.zlo:,ees

for .whomline item appropriations aremade may be paid f;r 6: -,.-..l-- --.,--ii-e;

vacation time from other salary funds. vi;q-3_, You are accoi-+..~--

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### lion.

RobertS.Calvert,page 4 (M-1252)

advised that such payment is subject to the limitation provided in Section 10 of Article V of the current General Appropriations Act relating to limitations on use of other expense funds for 

### payingsalariesandwagesquotedinyourrequest. 

### SUMMARY A State employee who resigns, isdismissed, or separated from State employment must be paid for all duly accrued vacation time and such payment may bemade from any appropriated funds available for the payment of salaries or wages.

ORD C.MARTIN General of Texas Prepared by John Reeves Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Marvin Sentell James Quick Bob Gauss Bob Flowers SAMUEL D. MCDANIEL Staff LegalAssistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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