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Honorable Tom DeBerry, Member State Board of Control Austin, Texas Dear Sir: Opinion No. O-3335 Re: Whether State employee may draw twelve (12) days’ vacation pay after drafting into Army. Inyour letter ofMarch 26, 1941, you request our opinion in response tothe following questions:

‘Is an employee ofthe State government who is drafted for service inthe United States Army enti~tledto twelve (12) days’ vacation with pay, as provided under the provisions ofthe various State appropriations bills, after i.nduction into the army? “In other words, our question is, can such an employee draw pay from both the Federal government and the State of Texas during the first twelve (12) days ofhis service in the regular army?” The men whom you mention not being members ofeither the National Guard of Texas, the National Guard Reserve of Texas, the ‘Organized Reserves ofthe United States Army, or the Naval Reserves ofthe United States Navy, it is apparent from a reading ofArticle 5890a. Vernon’s Civil Statutes, that ithas nobearing on your question.

Inthe general rider tothe Departmental Appropriation Bill, at page 284, Vol. 2, General and Special Laws, 46th Legislature, we find the following provision:“Vacation Allowance. Department employees shall, without deduction insalary, receive not exceeding twelve days’ vacation, exclusive ofSundays and legal holidays ,onwhich State offices are closed, for each State fiscal year, such vacation period to be mutually agreed upon by the head ofeach department with his employees, provided, that employees belonging to the Texas National Guard may have their vacation at the time ofthe meeting ofthe annual encampment. Provided,Honorable Tom DeBerry, Page 2, O-3335

that no employee for whom a salary is hereby appropriated, shall receive compensation while on vacation unless he or she has been an employee ofthe department for not less than six calendar months, preceding the vacation period.” The above does no more than authorize atwelve day vacation on pay for departmental employees. It makes no attempt togrant to such employees any pay after the termination oftheir employment. Our opinion No. O-2814. From the case ofGutzwiller V.American Tobacco Co., 122A. 586, Vermont Supreme Court, we quote:

“* * * A vacation, according toMr. Webster, is a period of leisure or rest; a holiday. This defini.tion, cl.early, implies a continuation of service, rather than that the service has ended. The master, who in recognition offaithful service, gives his servant a holiday, cannot be said tothereby terminate his relation ofmaster to such servant. * * *” From the opinion ofthe Supreme Court ofWashington in State v. Case, 19P. (2d) 927, we quote:

“Section 133, chapter 7, p. 67, Laws of 1921. reads as follows:

‘Each subordinate officer and employee ofthe several. offices, depa.rtments, and institutions ofthe state government shall be entitled, during each twelve months’ period, to fourteen days’ leave ofabsence with full pay.’

“It is the relator’s contention that, since he did nottake a vacation during the twelve months prior tothe time that his connection with the office of the state auditor ceased, he was entitled tosuch vacation period after the severance ofhis connection with that office. The statute, just quoted, provides that ‘each subordinate officer’ ofthe state government shall be entitled, during each twelve months’ period, to fourteen days’ leave ofabsence with full pay. The statute, by its express language, would appear to contemplate thatthe one receiving a vacation on pay must be a subordinate officer or employee at the time the vacation was taken. We see nothing inthe statute which would authorize the payment, for a vacation period, to onewho had been an employee ofthe state, subsequent tothe time that his service ended. The purpose ofthe statute, as we view it, was to give each employee, during the time that he was in the service ofthe state, a vacation offourteen days on pay; but itdoes not follow from this that the state auditor could issue a warrant covering a vacation period which had notbeen taken,.

Honorable Tom DeBerry, Page 3, o-3335

and, ineffect, grant the employee a vacation onpay after he had ceased to be an employee of the state. Ifthis could be done, it would be, in effect, the giving to the employee ofa gratuity or bonus in addition to his regular salary which he agreed to accept at the time the employment or service began.

“* * * Itis our conclusion onthis branch ofthe case that, when the relator’s service was terminated, his right to a vacation ceased and he no longer had a right to compensation for a vacation period which he did not take during the time ofhis employment.*
It is difficult tosee how a State employee, after he has been drafted into the Army, could be considered as still being an employee ofthe State, even on vacation. However, we do not find itnecessary to rest our opinion onthe proposition that employment technically ceases upon induction into the Army.

Article XVI, Section 33, ofthe State Constitution, reads: “The Accounting Officers ofthis State shall neither draw nor pay a warrant upon the Treasury in favor ofany person, for salary or compensation as agent, officer or appointee, who holds at the same time any other office or position ofhonor, trust or profit, under this State or the United States, except as prescribed inthis Constitution. Provided, that this restriction as tothe drawing and paying ofwarrants upon the Treasury shall not apply to officers ofthe National Guard of Texas, the National Guard Reserve, the Officers Reserve Corps ofthe United States, nor to enlisted men of the National Guard, the National Guard Reserve, and the Organized Reserves ofthe United States, nor to retired officers ofthe United States Army, Navy and Marine Corps, and retired warrant officers and retired enlisted men ofthe United States Army, Navy, and Marine Corps.” From the above it is clear, without argument, that unless a man falls within one ofthe exceptions provided inthe second sentence the Comptroller cannot issue him awarrant in consideration ofany employment by the State subsequent tothe time he is enlisted inthe Army, whether as an officer or a private. It must be remembered that in Carpenter v. Sheppard, 145S. W. (2d) 562, the Supreme Court was dealing with a man who was an officer in the National Guard and as such had been ordered into federal service by the President.Honorable Tom DeBerry. Page 4, O-3335

Itwas onthe express ground that Carpenter was an officer ofthe National Guard and within the exceptions that hewas held entitled to draw pay from the State after his induction into theArmy. Your question, as we understand it, relates to men who are not inthe National Guard nor any ofthe other exceptions listed inthe above constitutional provision. Hence, we are compelled to answer your question inthe negattve. Yours very truly ATTORNEY GENERAL OF TEXAS

Glenn R. Lewis Assistant APPROVED

OPINION COMMITTEEBYChairman GRL:LM

ATTORNEY GENERAL OF TEXAS