**Au-.** TXXASI 787ll
September 16, 1977

Honorable Charles Leklaistre Chancellor, University of Texas System Office of General Counsel 201 West 7th Street Austin, Texas 78701 Opinion No. R-1055
Re: Whether facultymembers of the Universityof Texas are entitled to payment for sick leave on termination.
Dear Dr. LeMaistre: You have requestedour opinion regarding whether faculty members of the University of Texas are entitled to payment for sick leave upon terminationof employment. The GeneralAppropriations Act for the 1975-77biennium provides, in articleV, section 7(b):

Employees of the State shall, without deduction in salary,be entitled to sick leave subject to the following conditions: Sick leave entitlement shall be earned at the rate of eight (8)hours for each month or fractionof a month employment, and shall accumulatewith the unused amount of such leave carried forward each month. Sick leavewith pay may be taken when sickness, injury,or pregnancy and confinement prevent the employee'sperformance of duty or when a member of his immediate family is actually ill. An employee who must be absent fromduty because of illness shall notify his supervisor or cause him to be notifiedof that fact at the earliest practicable time.

To be eligible for accumulated sick leave with pay during a continous period of more than three (3)working days, an employee absent due to illness shall send to the administrativehead of his employing agency a doctor's certificate

p. 4334. .

Honorable Charles LeMaistre - Page 2 (x-1055)

(Emphasisadded). We note that the latterprovision does not appear in the General AppropriationsAct for the 1977-79 biennium.

showing the cause or nature of the illness or some other written statementof facts concerning the illnesswhich is acceptable to such administrativehead. Upon return to duty after sick leave the employee concerned shall,without delay, complete the prescribed application for sick leave and submit the same throughproper channels to the appropriate approving authority for his consideration. Exceptions to the amount of sick leave an employeemay takemay be authorized by the administrativehead or heads of any agency of the State provided such exceptions are authorized on an individual basis after a review of the merits of such particular case. A statementof any such authorized exceptions or the reasons for them shall be attached to the State agency's duplicate payroll voucher for the payroll period affected by such authorized exceptions. The foregoingprovision regarding sick leave shall not apply to State institutions of higher educationwhich had established rules in effect prior to the adoption of this Act for sick leave for the nonacademic and academic staffs of such institutions,and such sick leave policiesmay continue to be established by the governing boards of such institutions.
A state employeewho resigns, is dismissed or separated from state employment shall be entitled to be paid for one-half of sick leave entitlementduly accrued.

p. 4335. 1

Honorable Charles LeMaistre - Page 3 (H-1055)

In Attorneys

General Opinion H-766 (1976)at 3,we held that the provision authorizing

payment of
. . . an employee's accumulated sick leave upon termination of employment is applicable to state institutionsof higher education.
We noted, however, that under the language of section 7(b), an institution of higher educationwhich had established sick leave policies in effect prior to September 1, 1975,

may continue to enforce those policies and to promulgateadditional policies of a similarnature. Attorney General Opinion H-766 (1976)'at4. You state that a number of the component institutionsof the University of Texas System have formany yearsmaintained a sick leavepolicy regarding facultymembers. During the period of a facultymember's illness, his teachingduties are assumed by anothermember of his department,but he continues to receivehis regular salary. Records of sick leave accrued and used are notmaintained, and sick leave accrual has not been recognized. If an institution is able to demonstrate that such policies were in effectprior to September 1, 1975, and that sick leave accrual by facultymembers was not recognizedprior to that time, we do not believe that the institution is required to compensate a separatedemployee for sick leaveon termination. Whether suchpolicieswere indeed in effect is of course a question of fact,whichmay be demonstratedby the existence of written rules, statements in a facultyhandbook, or otherwise. SUMMARY If, under establishedpolicy prior to September 1, 1975, facultymembers did not accrue sick leave, a university is not required to compensate a separated employee for sick leave on termination. Whether suchpolicy was in effect is a question of fact.

P. 4336Honorable Charles LeMaistre - Page 4 w-1055)

General of Texas APPROVED: 

# c*

LL, **First** Assistant

- -. ATH, Chairma; Opinion Committee

I_ jet

p. 4337