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Honorable J. C. Dingwall Opinion No. M- 811

State Highway Engineer Texae Highway Department ‘Austin,Texas Re: Right of estates of de

### 78701 ceased state regular “hourly employees” to recover for vacdtion and sick leave due deceased Dear Mr. Dingwall: emplqyee.

You have advised us that the State Comptroller has interpreted Attorney GeneralOpinionNo. ing, In effect, 

### M-731 (1970)ae holdemployee” that it Is neceesary that a regular ‘hourly

be a classified ealarledemployee in order ,to,authorlze death eettlemente.to. their estatesand for vacat1o.q and elck leave. Our opinion ie now requestedon how payments may be secured to the estates of deceased etate regular’hourly employees on the same baei e as payment Is prescribed to be made to the estates of claesified ealarled employees.

You state, in part, that “The Claims Division of the State Comptroller’s Office has refused payment of the death settlement to the estate of one of our regularhourly employees because they interpret this Opinion as making it necessary that an hourly employeebe a classified salaried employee.

. . Prior to the leeuance of Opinion M-731 we were able to pay 115 death settlements, one-half being to estates of deceased hourly employees.

. .‘I Our Opinion M-731 did not specifically consider the statue or right of the estates of deceased state regular hourly employees to recover for vacationand sick leave. So-called “hourly employees” are expressly exempted from the Position ClassificationAct, Article 

### 6252-11,Vernon’s Civil Statutes, Section 2, fourth paragraph, alongwith part-time and temporary employees.Certain specified “hourlyemployees” are entitled to accumulated vacation and sick leave under Article 6252-8a, -3938--, -

.

Honorable J. C. Mngwall, page 2 (M-811)

Vernon's Civil Statutee, and under the GeneralAppropriation Bill, House Bill 2, 6let Legislature, 1969, 2nd Called Session. Article 6252-8a, providing for payments of accumulatec! vacation nnd sick leave to estates of state employees,covers . . . 311~aDDointed officer or emnlovee in a deoartmentof the .?tate iyhjlh'employedon a basis jr in a posItI& normally requlr.i~np, not less than 900 hours per year. . .II(emphasisadded) and not t o herwise thereinafter excepted from the coverage. ArticleV, Section 7f of the GeneralAppropriation Bill (supra,p. 1017 of the Session Laws!) provides that funds appropriated in that act for salaries and wages

'maybe paid for all of the employee's accumulated vacation leave and for one-halfof hie accumulated elck leave to the estateof an employee ?Jheneald employee dies while employed bv the State of Texae. The oavment shallbe calculatedat the rate of comp&atlon being aid the employee at the time of hia death. emphaele added). bJhileSection 7a of Article V of this Billmakes certainprovisions for vacationand leave entitlementsae to "annualemployees", there is no prohibition thereinexcluding entitlement to the estates of deceased regular hourly employeeswho are

II

. . .employedon a basic or In a position normally requiring not less than 900 hours per year. . ." and VJhOse term of employment IS contemplatedto be, and doea in fact continue for, the entire calendaryear under the terme of that employment. Thle Section 7a doesprovide,however, that

"No employee shall be allowed any paid vacation entitlementuntil he hashad continuous employmentwith the State for six (6)months."
We have concluded, therefore, that neitherArticle 6252-8a nor the GeneralAppropriationAct (H.B. 2, 61st Leg., Acts 1969, 2d C.S.)makes It necessary that an “hourlyemployee” be a classified salaried employee in order that his estate, upon hi? death, become entitled to recoverfor accumulated vacation and sick leave, providing the foregoing statutory conditions are met and no General AppropriationAct conditions are violated.
-3939-Honorable J. C. Dingwall, page 3 (M-811)

Each state departmenthead must make the factual determinationas to whether the regularhourly employee “18 employed on a basis or in 8 ~osltlonnormally requiring not less than 900 hours per year and whose term of employment is contemplated to be and does In fact continue for the entire calendaryear under the terms of that employment. If the hourly employee is so employed,his estate upon hle death is entitled to recover for any accumulatedvacation and sick leave the employee has accrued under the law, and provided no condition of the appropriationgrant 1s vlolated. ‘8 foundnot to be employed on thie ;,’;he hourly employee I s s, thenhis estate is not entitled to recover for accumulated vacation or sick leave time. For the purpose of paying accrued vacation and elck leaveupon the death of such an hourly employee,his estate shouldbe pald for the same number of calendar days ae to which the employeewould have been entitled had he lived and claimed such vacation and elck leave on the date following the date of his death and until such accrued leave time expirea.
SUMMARY The estates of regular “hourlyemployees” are entitled to recover for accruedvacationand sick leave under Article 625%8a, V.C.S., providing the decedents are employed on a basis or In a position normally requiring not less than 900 hoursper year, and if not otherwise excepted from the statute, and provided no condition of the grant la violatedbye the GeneralA propriatlonAct (H. B. 2, 61sttig. 1969, 2d C.S.7. The estate8 should be paid for the game numberof calendar days as to which the employee would have been entitled had he lived and claimed such vacation and sick leaveon the date following the date of his death and until such accrued.leave time expires. Yours very truly, CRAWFORD

C. MARTIN AttorneyGeneral of Texas

-3940-Honorable J. C. Dlngwall, page 4 (M-811)

Prepared by Kerns Taylor Aselstant Attorney General
APPROVED: OPINION COMMITTEE
W. E. Allen,Acting Chairman J. C. Davis John Reeves S. J. Aroneon Jack Goodman
MEADE F. GRIFFIN Staff Legal Aasletant
ALFRED WALKEB Executive Assistant

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