Hon. J. C. Dingwall            Opinion No. M-1281
State Highway Engineer
Texas Highway Department       He:   Whether an employee of the
Austin, Texas 78701                  Texas Highway Department
                                     occupying one of the Line
                                     Item positions covered by
                                     Item 2 through 22 in the
                                     current Appropriations Act
                                     to that Department who re-
                                     signs, or is dismissed or is
                                     separated from State employ-
                                     ment be paid for accumulated
                                     vacation time out of either
                                     Items 23, 24 or 26 of that
                                     appropriation, and related
Dear Mr. Dingwall:                   questions?

          Your request for an opinion asks the following questions:

          "1 . Can an employee occupying one of the
     Line Item positions covered by Item 2 through Item
     22 in the current Highway Department Appropriation,
     who resigns, is dismissed, or is separated from
     State employment, be paid for accumulated vacation
     time at the time of separation, out of funds appro-
     priated in Item 23 or 24 or 267

          "2 . Can a Line Item position which is vacated,
     as described above, be filled on the following day
     at the salary for the particular Line Item?"

          Items 2 through 22 of the appropriation to the Texas
Highway Department contained in the current General Appropriations
Act are line item appropriations for salaries of employees of rhe
Texas Highway Department.

          Items 23, 24 and 26 read as follows:




                           -b287-
                                                              .   --


                                                                       \


Hon. J. C. Dingwall, page 2   (~-1281)



                                       "For the Year Ending
                                            August 31,
                                               1973
                                        _------e-w
     "23.   Salaries of Classified
            Positions, estimated to be        92,898,207

     "24.   Hourly Wages and Professional
            Fees and Services, estimated
            to be                             60,839,035

     "26.   For all other operating ex-
            penses involved in establish-
            ing, planning, constructing,
            and maintaining a system of
            State Highways as contemplated
            and set forth in Chapter I,
            Title 116, Revised Civil
            Statutes of Texas, 1925, and
            Chapter 186, General Laws,
            Thirty-ninth Legislature,
            Regular Session, and amendments
            thereto, to pay refunds au-
            thorized by law, and to pay
            court costs in suits involving
            the Highway Department,
            estimated to be               527,390,091"

          It was held in Attorney General's Opinion M-1252 (1972)
that employees for whom line item appropriations are made may be
paid for accumulated vacation time from other salary funds. This
holding was reiterated in Attorney General's Opinions M-1279 (1972)
and M-1280 (1972).

          Item 2 provides for the salary of the State Highway
Engineer, and Items 3 through 22 provide for the salaries of
various other engineers and departmental directors.  The occupants
of all of the positions provided for in Items 2 through 22 are
employees, not officers. Dunbar v. Brazoria County, 224 S.W.2d
738 (Tex.Civ.App. 1950, error ref.).

           Items 23 and 24 are appropriations from other salary
funds.   Item 26 is not an item of appropriation for salaries.

          You are accordingly advised in answer to your first
question that an employee occupying one of the line item positions


                              -6288-
.   .




        Hon. J. C. Dingwall, page 3    (M-1281)



        covered by Item 2 through Item 22 of the appropriation to the
        Highway Department in the current General Appropriations Act
        may be paid for accumulated vacation time at the time of separation
        out of funds appropriated in Item 23 or Item 24. In answer to your
        second question, you are advised that where a line item position is
        vacated, such position may be filled on the following day at the
        salary provided for in the particular line item appropriation.

                                 SUMMARY

                  An employee occupying a line item position
             covered by Item 2 through Item 22 of the appro-
             priation to the Texas Highway Department may be
             paid for accumulated vacation time at the time
             of separation out of funds appropriated in Items
             23 or 24 of the appropriation to the Highway De-
             partment.  Where a line item position is vacated,
             such position may be filled the following day at
             the salary for the particular line item appro-
             priation.




                                           Att ney General of Texas
                                             l?
        Prepared by John Reeves
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        W. E. Allen, Chairman
        Bob Flowers
        J. C. Davis
        Marvin Sentell
        Bob Gauss
        John Grace

        SAMUEL D. MCDANIEL
        Staff Legal Assistant

        ALFRED WALKER
        Executive Assistant

        NOLA WRITE
        First Assistant

                                      -6289-
