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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 de78701 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 General Opinion No. 

ing, In effect, 

M-731 (1970) ae holdemployee” 

that it Is neceesary that a regular ‘hourly 

be a classified ealarled employee in order ,to ,authorlze death eettlemente .to. their estates and for vacat1o.q and 

elck leave. Our opinion ie now requested on 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 cla esified 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 regular hourly employees 

because they interpret this Opinion as making it 

necessary that an hourly employee be 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 vacation and sick leave. So-called 

“hourly employees” are expressly exempted from the Position 

Classification Act, Article 6252-11, Vernon’s Civil Statutes, 

Section 2, fourth paragraph, along with part-time and temporary 

employees. 

Certain specified “hourly employees” are entitled to 

accumulated vacation and sick leave under Article 6252-8a, 

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

Vernon's Civil Statutee, and under the General Appropriation 

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 deoartment of the .?tate 

iyhj lh'employed on a basis jr in a posItI& normally requlr.i~np, 

not less than 900 hours per year. . .II (emphasis added) and 

not o t herwise thereinafter excepted from the coverage. 

Article V, Section 7f of the General Appropriation 

Bill (supra, p. 1017 of the Session Laws!) provides that funds 

appropriated in that act for salaries and wages 

'may be paid for all of the employee's accumulated vacation leave and for one-half of hie 

accumulated elck leave to the estate of an employee ?Jhen eald employee dies while employed 

bv the State of Texae. The oavment shall be 

calculated at the rate of comp&atlon being 

aid the employee at the time of hia death. 

emphaele added). 

bJhile Section 7a of Article V of this Bill makes certain provisions for vacation and leave entitlements ae to "annual employees", there is no prohibition therein excluding entitlement 

to the estates of deceased regular hourly employees who are 

II 

. . .employed on a basic or In a 

position normally requiring not less than 

900 hours per year. . ." 

and VJhOse term of employment IS contemplated to be, and doea in 

fact continue for, the entire calendar year under the terme of 

that employment. Thle Section 7a does provide, however, that 

"No employee shall be allowed any paid 

vacation entitlement until he has had continuous 

employment with the State for six (6) months." 

We have concluded, therefore, that neither Article 

6252-8a nor the General Appropriation Act (H. B. 2, 61st Leg., 

Acts 1969, 2d C.S.) makes It necessary that an “hourly employee” 

be a classified salaried employee in order that his estate, 

upon hi? death, become entitled to recover for accumulated 

vacation and sick leave, providing the foregoing statutory conditions are met and no General Appropriation Act conditions 

are violated. 

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Honorable J. C. Dingwall, page 3 (M-811) 

Each state department head must make the factual 

determination as to whether the regular hourly employee “18 

employed on a basis or in 8 ~osltlon normally 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 calendar year under the terms of that employment. 

If the hourly employee is so employed, his estate upon hle 

death is entitled to recover for any accumulated vacation 

and sick leave the employee has accrued under the law, and 

provided no condition of the appropriation grant 1s vlolated. 

;,’ ;he hourly employee I ‘8 found not to be employed on thie 

s s, then his estate is not entitled to recover for accumulated vacation or sick leave time. For the purpose of paying 

accrued vacation and elck leave upon the death of such an 

hourly employee, his estate should be pald for the same 

number of calendar days ae to which the employee would 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 “hourly employees” are 

entitled to recover for accrued vacation and 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 hours per year, 

and if not otherwise excepted from the statute, and 

provided no condition of the grant la violated bye 

the General A propriatlon Act (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 leave on the date following 

the date of his death and until such accrued .leave 

time expires. 

Yours very truly, 

CRAWFORD C. MARTIN 

Attorney General of Texas 

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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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