                                The Attorney          General of Texas

JIM MATTOX
                                                December 23, 1985
Attorney General


Supreme Court Building          Mr. W. N. Kirby                        Opinion No. JN-4'07
P. 0. Box 12548                 Commissionerof Education
Austin, TX. 78711. 2548         Taxas EducationAgency                  Re: Allowable credit for prior
51214752501                     201 East Eleventh Street               state serviceof student employees
Telex 9101874.1367
Telecopier 512/47M266
                                Austin, Texas 78701

                                Dear Mr. Kirby:
714 Jackson, Suite 700
Dallas, TX. 752026506
                                     You inquire about the effect of the definition of a regular
214i742.8944
                                employee in article V, section 7(d), of the 1979 General Appropria-
                                tions Act, and In,each subsequentAppropriationsAct, on length of
46.24 Alberta Ave.. Suite 160   service computations for the longevity pay and vacation leave of a
El Paso, TX. 79905.2793         state employee wL!:hprevious employment at an institutionof higher
9151533-3484                    education in a position that required student status as a condition
                                for employment. The riders in questionprovided the following:
1001 Texas. Suits 700
Housto”, TX. 77002.3111                        For institutions'andagencies of higher educa-
7l3l223.5886                                tion, a regular employee is defined as one who is
                                            employed to work at least 20 hours per week for a
                                            period of at least four and one-halfmonths, ex-
806 Broadway. Suite 312
Lubbock. TX. 79401.3479
                                            cluding students employed in positions which
8081747.5238                                require student status as a conditionfor eatploy-
                                            ment. Only regular employeesof institutionsand
                                            agencies of higher educationshall be eligible for
 4309 N. Tenth. Suite B
 McAllen. TX. 78501.1685
                                            paid vacation and leave as providedherein.
 5121662.4547
                                -See Acts   1985, 69th Leg., ch. 980, art. V, §8d, at 7766.
 20x3Main Plaza, Suite 400           We conclude that the exclusionof studentsemployed in positions
 San Antonio, TX. 782052797
 51212254191
                                 that require student status from the definitionof a regular employee
                                 at institutions and agencies of higher education renders such
                                 employeesineligdble for paid vacation while so employed. The length
 An Equal OppOrtUnitYI           of servicecomputationsthat determinethe amount of longevitypay and
 Attirmative Action Employer     vacation leave that an employee eligible for those benefits is
                                 entitled to rece:tveare provided by article 6813d, V.T.C.S., and by
                                 articleV, section 8a of the General AppropriationsAct, respectively
                                 neither of which suggests that the legislatureintendedto exclude the
                                 described employment from such computations. V.T.C.S. art. 6813d;
                                 Acts 1985, 69th Leg., ch. 980. art. V. 58a. at 7764.

                                     Longevity psg for state employees is authorized by general
                                 statutorylaw. The statute providesthat



                                                             p. 1862
Mr. W. A. Kirby - Page 2   (JM-483):.




          each state employee coveredby the Position Classi-
          fication Act of 1961. each line item or exempt
          state employee, each regular full-time hourly
          employee of the state, and each regular full-time
          nonacademic employee of a state institution of
          higher education is entitled to longevitypay of a
          maximum of $4 pe,rmonth for each year of service as
          an employee of the state up to and including 25
          years of servicr,.. . .

V.T.C.S. art. 6813d.

                           not whether a person is an employeewho is
    The issue before us j.6,
eligible to receive earoed longevity pay under that statute. The
issue is the meaning of tinephrase "for each year of service as an
employee of the state" for the purpose of computing the amount of
longevity pay, if any, that an eligible employee has earned.
Eligibility is not determined by the same criteria as that used to
compute the amount of ao eligible employee's longevity pay. Cf.
Attorney General Opinion YW-282 (1980) (relating to eligibilityof
employeesto receive longevitypay).

     Article 6813d neither defines nor qualifies the meaning of "an
employee of the state." It is our opinion that the language of the
statute is unqualified.snd does not exclude any class of state
employees. See Attorney SeneralOpinion MW-100 (1979) (prior service
as nationalFrd techniclencreditedas service as an employee of the
state for purposes of longevity pay under article 6813d). Cf.
Attorney General Opinion E-684 (1975) (interpretingphrase uemploy=
of the state" iu an approp,riations
                                  act for purpose of accrual of sick
leave).

    Where the legislaturemakes no exceptionto the provisions of a
statute. the uresumntion ,tsthat it intended no exceptions. It is
well settled that except.ionsand restrictionsin statutes are not
ordinarilyimplied. --See Smith v. Aenger, 226 S.W.2d 425, 435 (Tex.
1950); Spears V. City of L;anAntonio, 223 S.W. 166, 169 (Tex. 1920);
Stubbs v. L~ey's    Heir!!.,253 S.W.Zd 312, 313 (Tex. Civ. App. -
Eastland 1952, writ ref'd n.r.e.). Nothing in article 6813d suggests
that the legislatureintended to exclude employmentat an institution
of higher education in a position requiring student status from the
computationof the amount of longevitypay under that statute.

     It also is well settled that an appropriationsact may detail,
limit, or restrict the use of funds appropriatedby the act, but a
rider attachedto the General AnoronriationsAct mav not conflictwith
general law. See Jessen Asso&tes,   Inc. v. Bullock, 531 S.W.2d 593,
600 (Tex. 1975);Hoore V.-She ard, 192 S.W.2d 559 (Tex. 1946); State
v. Steele, 57 Tex. 203--is+       Attorney General Opinions JM-343
(1985);M-1199 (1972). 3:nauthorizingthe use of appropriatedfunds



                                p. 1863
’
    Mr.   W. 1. Kirby- Page 3   (~~-407)




    for paid vacations for state employees, the riders in question have
    excluded employees at incltitutions  of higher education who are not
    regular employees as defined by the riders. Thus, employees at
    institutions of higher etlucationin positions that require student
    status as a conditioa of employmentmay not receive paid vacations.
    Student employees' eligil~ilityfor paid vacations is a different
    subject from the computationof the amount of longevitypaymantsunder
    article 6813d, and the rider is not in conflictwith article 6813d.

         General statutory law does not specify paid vacation for state
    employees,but riders to appropriationsacts have authorizedthe use
    of funds appropriatedby the acts for state employees'vacations. A
    rider in the General Ap?:copriations  Act for the current biennium
    provides,in pertinentpart, that

              [olther than faculty with appointmentsof less than
              twelve months at j.nstitutionsof higher educationand
              other than instructionalemployeeswith contractsfor
              periods of less than twelve months at the Texas School
              for the Blind and the Texas School for the Deaf,
              employees of the state shall, without deduction in
              salary be entitle<.to a vacation in each fiscal year.
              Such entitlement shall be earned in accordancewith
              the followingschedule:

                                                        Msximum Hours
                                                        to Carry For-
                                                        ward From One
                                                        Fiscal Year
              EmployeesWith Total         Hours Accrued to Next
              State EmploymentOET         Per Month     Fiscal Year

               0 but less than 2 years         7            168
               2 but less than 5 years         8            192
               5 but less than 10 years        9            216
              10 but less than 15 years       10            240
              15 but less than 20 years       12            288
              20 and over years               14            336

                 An employee wi:L  earn vacation entitlementbegin-
              ning on the first day of employmantwith the state and
              terminating ou the last day of duty. Vacation en-
              titlement is accrued at the applicable rate cited
              above. . . . (Emphasisadded).

     Acts 1985, 69th Leg., ch. 980, art. V. §8a, at 7764.

         Again, the issue be:ioreus is not whether ao employee of an
     institutionof higher education who is employed in a position that
     requires student status 1'seligible to earn vacation entitlement.



                                     p. 1864
Mr. u. H. Kirby   - Page 4   ,(.lM-.4V7J
                                      '.




Article V, section gd of the same act expressly provides that only
                                of higher educationare eligible for
regular employeesof insti,:utions
vacation leave and exclui& such employees from its definition of
regular employee. The lsa,ueIs the criteria to be used in computing
the amount of.vacationentitlementthat is earned by a state employee
who is eligible for paid vacation. The rider provides that the rate
at which vacation entitlsment is earned is determined by the
employee's "total state employment"without expresslyexcepting any
state employment from the 'computation.An employeeof a college or
university who does not qualify as a regular employee eligible for
paid vacation because c11e position requires student status is,
nevertheless,in the emplo:naent
                              of the state.

     It is our opinion that if the legislature intended to limit
longevity of state employment for the purpose of computingvacation
entitlementby excluding c.ertainstate employment,the legislature
expresslywould have so provided. Cf. Attorney GeneralOpinion H-941
(1977) (time on active mi'litaryduty included within longevity of
employmentfor purposes of determiningamount of vacation entitlement
but the accrual of vacatica.leave while on active duty not allowed).
In answeringquestions concerningthe accrual of the proper amount of
vacation leave by state lzmployeesunder prior appropriationsacts,
this office stated that

           [ilf there be any doubt or ambiguity in the
           statute calling for constructiou,it should be
           resolved in fav'xcof the beneficiary under the
           well settled maon which demands a liberal
           constructionin :Iavorof encouragingState service
           by State employelzs.

Attorney GeneralOpinion M-%4     (1971).

                                SUMMARY

              Computations'b.ssedon length of service as an
           employee of the state to determine the amount of
           longevitypay and vacation leave that an employee
           eligible for thorlobenefits is entitledto receive
           are determined by article 6813d, V.T.C.S.. and
           article V, section 8a of the current General
           Appropriations ,41-t,respectively, and not by
           articleV. section Ed of the current act. Article
           V, section Ed rtnders an employee ineligiblefor
           paid vacation if the person is employed in a
           position that requires student status at an
           institutionof higher education as a conditionof
           the employment. Neither article 6813d, V.T.C.S.,
           nor article V, sfcction8a of the General Appro-
           priationsAct exclude such employmentfrom length



                                 p. 1865
I


    t4r.W. H. Kirby - Page 5   (.I?+407).~




              of service computationsthat determine the amount
              of an employee'slongevitypay and vacation leave.




                                             JIM    MATTOX
                                             Attorney General of Texas

    JACK HIGHTOWBR
    First AssistantAttorney Gsaueral

    MARY KELLER
    ExecutiveAssistantAttorrq General

    ROBERT GRAY
    Special AssistantAttorney General

    RICK GILPIN
    Chairman,Opinion Comnitte,:

    Preparedby Nancy Sutton
    AssistantAttorney General




                                   p. 1866
