. - 

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. 

In your letter of March 26, 1941, you request our opinion in response to the following questions: 

‘Is an employee of the State government who is drafted for 

service in the United States Army enti~tled to twelve (12) days’ vacation with pay, as provided under the provisions of the 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 of his service in the regular army?” 

The men whom you mention not being members of either the National 

Guard of Texas, the National Guard Reserve of Texas, the ‘Organized Reserves 

of the United States Army, or the Naval Reserves of the United States Navy, it 

is apparent from a reading of Article 5890a. Vernon’s Civil Statutes, that it has 

no bearing on your question. 

In the general rider to the 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 in salary, receive not exceeding twelve days’ vacation, exclusive of Sundays and legal holidays , on which State offices are closed, 

for each State fiscal year, such vacation period to be mutually agreed 

upon by the head of each department with his employees, provided, that 

employees belonging to the Texas National Guard may have their vacation at the time of the meeting of the 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 of the department for not less than six calendar months, 

preceding the vacation period.” 

The above does no more than authorize a twelve day vacation on pay 

for departmental employees. It makes no attempt to grant to such employees 

any pay after the termination of their employment. Our opinion No. O-2814. 

From the case of Gutzwiller V. American Tobacco Co., 122 A. 586, Vermont 

Supreme Court, we quote: 

“* * * A vacation, according to Mr. 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 of faithful service, gives his servant a 

holiday, cannot be said to thereby terminate his relation of master 

to such servant. * * *” 

From the opinion of the Supreme Court of Washington in State v. Case, 

19 P. (2d) 927, we quote: 

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

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

full pay.’ 

“It is the relator’s contention that, since he did not take a vacation during the twelve months prior to the time that his connection with 

the office of the state auditor ceased, he was entitled to such vacation 

period after the severance of his connection with that office. The statute, just quoted, provides that ‘each subordinate officer’ of the state 

government shall be entitled, during each twelve months’ period, to 

fourteen days’ leave of absence with full pay. The statute, by its express language, would appear to contemplate that the one receiving a 

vacation on pay must be a subordinate officer or employee at the time 

the vacation was taken. We see nothing in the statute which would authorize the payment, for a vacation period, to one who had been an employee of the state, subsequent to the time that his service ended. The 

purpose of the statute, as we view it, was to give each employee, during 

the time that he was in the service of the state, a vacation of fourteen 

days on pay; but it does not follow from this that the state auditor could 

issue a warrant covering a vacation period which had not been taken, 
. 

Honorable Tom DeBerry, Page 3, o-3335 

and, in effect, grant the employee a vacation on pay after he had 

ceased to be an employee of the state. If this could be done, it 

would be, in effect, the giving to the employee of a gratuity or bonus in addition to his regular salary which he agreed to accept at 

the time the employment or service began. 

“* * * It is our conclusion on this branch of the 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 of his employment.* 

It is difficult to see how a State employee, after he has been drafted 

into the Army, could be considered as still being an employee of the State, 

even on vacation. However, we do not find it necessary to rest our opinion 

on the proposition that employment technically ceases upon induction into 

the Army. 

Article XVI, Section 33, of the State Constitution, reads: 

“The Accounting Officers of this State shall neither draw nor 

pay a warrant upon the Treasury in favor of any person, for salary 

or compensation as agent, officer or appointee, who holds at the same 

time any other office or position of honor, trust or profit, under this 

State or the United States, except as prescribed in this Constitution. 

Provided, that this restriction as to the drawing and paying of warrants 

upon the Treasury shall not apply to officers of the National Guard of 

Texas, the National Guard Reserve, the Officers Reserve Corps of the 

United States, nor to enlisted men of the National Guard, the National 

Guard Reserve, and the Organized Reserves of the United States, nor 

to retired officers of the United States Army, Navy and Marine Corps, 

and retired warrant officers and retired enlisted men of the United 

States Army, Navy, and Marine Corps.” 

From the above it is clear, without argument, that unless a man falls 

within one of the exceptions provided in the second sentence the Comptroller 

cannot issue him a warrant in consideration of any employment by the State 

subsequent to the time he is enlisted in the Army, whether as an officer or a 

private. It must be remembered that in Carpenter v. Sheppard, 145 S. 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 

It was on the express ground that Carpenter was an officer of the National 

Guard and within the exceptions that he was held entitled to draw pay from 

the State after his induction into the Army. Your question, as we understand 

it, relates to men who are not in the National Guard nor any of the other exceptions listed in the above constitutional provision. Hence, we are compelled 

to answer your question in the negattve. 

Yours very truly 

A TTORNEY GENERAL OF TEXAS 

Glenn R. Lewis 

Assistant 

APPROVED 

OPINION 

COMMITTEE 

BYChairman 

GRL:LM 

ATTORNEY GENERAL OF TEXAS