                                               The Attorney General (

    JIM MATTOX
    Attorney General


                                              Mr. William P. Daves, Jr.
    Supreme   Court Building
                                              Chairman
    P. 0. Box 12546
    Austin. TX. 76711. 2546
                                              State Board of Insurance               lle: Whether the commissioner
    51214752501                               1110 San Jacinto                       of insurance is an "employee"
    Telex    9101674.1367                     Austin, Texas    78706                 or "officer" for purposes of
    Telecopier      51214750266                                                      article 6252-8b, V.T.C.S.

    1607 Main St.. Suite 1400
                                              Dear Mr. Daves:
    Dallas. TX. 75201.4709
    2141742.6944                                   You ask:

    4624 Alberta        Ave.. Suite     IM)
                                                           Is a commissioner of insurance, appointed
    El Paso. TX.        799052793                       pursuant to the provisions of article 1.09 of the
    9151533.3464                                        Texas Insurance Code, an       'employee' or an
                                                        'officer' of the state of Texas for purposes of
r
                                                        accrual of and payment for annual leave time under
     .-LO   Dallas     Ave..   Suite   202
    HOUS,O”.     TX.      77002.6966
                                                        the provisions of article 6252~8b, V.T.C.S.?
    7131650-0666
                                                   Article 6252-8b. V.T.C.S., provides in pertinent part:
    606 Broadway.          Suite 312                       Section 1. A state employee who resigns, is
    Lubbock.  TX.         79401.3479
                                                        dismissed, or separated from state employment
    6061747.5238
                                                        shall be entitled to be paid in a lump sum for all
                                                        vacation time duly accrued at the time of
    4309 N. Tenth. Suite 6                              separation from state employment; provided the
    McAkn,   TX. 76501.1665                             employee has had continuous employment with the
     5121662.4547
                                                        state for six months. (Emphasis added).

     200 Main Plaza. suite 400                     In your letter to this office, you stated that Attorney General
     San Anlonw,.  TX. 76205-2797             Opinion MU-517 (1982) prompted your question. In that opinion, this
     5121225.4191                             office held that the commissioner of education is not entitled to
                                              accrue vacation time under article V. section 7 of the General
     An Equal        Opportunityi             Appropriations Act, and that he is therefore ineligible for any
     Affirmative       Action     Employer    payment under article 6252-8b. The opinion reasoned that both article
                                              V. section 7 of the General Auorooriations Act and article 6252~8b
                                              apply only to "state employees,';t and
                                                                                 *   that under Aldine Independent
                                              School District v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). which
                                              holds that an individual is a "state officer" if he exercises any
                                              sovereign function of government for the benefit of the public and
                                              largely independent of the control of others, the commissioner of
    r                                         education is not a "state employee."




                                                                          P.   a5
Mr. William P. Daves, Jr. - Page 2   (JM-19)




     Your  question caused us to reexamine the reasoning and
conclusions of Attorney General Opinion MW-517 and come of the prior
opinions upon which it relied. We now conclude that    these opinions
are at least partially erroneous.

     In reaching its conclusions, Attorney General Opinion MW-517
relied upon prior attorney general opinions. Attorney General Opinion
M-1279 (1972) was the first such opinion to hold explicitly that
article V, section 7 of the General Appropriations Act does not apply
to "state officers." This opinion pointed out that under the 1971
appropriations act, Acts 1971, Sixty-second Legislature, chapter 1047.
article V, section 7, at 3796. only "annual employees of the State"
accrued vacation time. Then, without defining the relevant terms or
offering any reasoning, the opinion simply asserted that "state
officers" are outside the ambit of article V, section 7. In so doing,
it impliedly took the position that "state officer" and "state
employee" are mutually exclusive categories.

     Attorney General Opinions M-1280 (1972) and H-715 (1975) were the
next two opinions to conclude that article V. section 7 does not apply
to "state officers." Neither opinion reached this conclusion after
independent analysis, however; on the contrary, both simply restated
the conclusion reached in Attorney General Opinion M-1279 without
questioning or reexamining it. By the time that Attorney General
Opinion MW-517 was decided, therefore, this conclusion, having been
stated in at least three opinions issued during a ten-year time span,
had come to be regarded as a virtual truism, even though no reasoning
or authorities had ever been marshalled to support it.

     We have now reexamined this conclusion, and we conclude that it
is incorrect.

     Three years before Attorney General Opinion M-1279 was issued,
the legislature enacted article 6252-8a, V.T.C.S. Acts 1969, 61st
Leg., ch. 217. at 633. The article was amended in 1971. Acts 1971.
62nd Leg., ch. 106, Il. at 866. Since 1971. this article has provided
in relevant part as follows:

             Section 1. 'Employee' as used in this Act
          means any appointed officer or employee in a
          department of the State who is employed on a basis
          or 8 position normally requiring not less than 900
          hours per year, but shall not include members of
          the Legislature or any incumbent of an office
          normally filled by vote of the people; [and others
          not relevant here].

             Sec. 2. Upon the death of a state employee,
          the state shall pay his estate for all of the




                                 p. 86
    .‘   .
             Mr.   William P. Daves. Jr. - Page 3 (JM-19)




                         employee's accumulated vacation leave and for
                         one-half of his accumulated sick leave.      The
                         payment shall be calculated at the rate of
                         compensation being paid the employee at the time
                         of his death.

                  Attorney General Opinion M-1279 did not completely overlook
             article 6252-8a, but we believe that it did fail to attach sufficient
             importance to that article. Then, as now, the subject of article V,
             section 7 of the General Appropriations Act was "Employees Vacations
             and Leaves," including sick leave. The subject of article 6252-8a
             was, and is, the entitlement of the estate of a deceased "state
             employee" to payments for that employee's accrued but unused vacation
             and sick leave. In our opinion, because article V, section 7 and
             article 6252-8a dealt with the same general subject, viz., the
             vacation and sick leave benefits of a "state employee,"Attorney
             General Opinion M-1279 should have read the two provisions together
             and concluded that the definition of "state employee" set forth in the
             latter provision should also apply to the former. In this context, we
             note that it hardly seems likely that the legislature which enacted
             article 6252-8a intended to afford the estates of certain deceased
             state employees an entitlement to something that did not exist. This
             conclusion follows if one concludes that some individuals who are
P            included in the definition of "state employee" set forth in article
             6252-8a are not "state employees" within the meaning of article V,
             section 7 of the General Appropriations Act and therefore cannot
             accrue vacation time under that provision.

                  We now turn to article 6252-8b. enacted in 1975. The language of
             this provision is virtually identical to the language of a portion of
             article V, section 7 of the 1971 appropriations act with which
             Attorney General Opinion M-1279 was concerned. We have already said
             that, for purposes of this section, "state employee" should be defined
             as it is defined in article 6252-8a. Because the language of this
             portion of article V, section 7 and the language of article 6252-8b
             are essentially the same, we believe that "state employee," within the
             meaning of the latter provision, was intended to have, and has, the
             same meaning.

                   We therefore conclude that the article 6252-8a definition of
              "employee" also applies to article V, section 7 of the General
              Appropriations Act and to article 6252-8b, V.T.C.S. The terms "state
              officer" and "state employee" are, in other words, not necessarily
              mutually exclusive. An individual may be an "officer" under Aldine
              Independent School District v. Standley. m,          and still be an
              "employee" within the meaning of these provisions. To the extent that
              they hold or indicate otherwise, Attorney General Opinions M-1279,
              M-1280, H-715, MW-517, and any others are overruled.




                                                p. 87
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                                                                                     ‘.
Mr. William P. Daves, Jr. - Page 4     (JM-19)




     In our opinion, our conclusion is. for several reasons, the most
reasonable one. First, it means that three legislative enactments
which deal with the same general subject apply to the same
individuals. Second, it accounts for the legislature's failure to
define "state employee" when it enacted article 6252-8b. Finally, it
avoids the anomalous result that would inevitably occur if we were to
conclude that decisions as to whether a particular individual is
within article V. section 7 and article 6252-8b should turn on whether
he is an "officer" or "employee" under the Aldine test. Under this
test, some administrative heads of agencies may be in one category,
and some in the other. Just as we do not believe that the legislature
intended that some "officers" would be within the ambit of article
6252-8a but outside the scope of article V, section 7 and article
6252-Eb, we do not think that it intended the applicability of the
latter two provisions to turn solely upon the nature of the duties and
responsibilities of the individual involved.

     The remaining question concerns the application of these
provisions to the commissioner of insurance. Under article 1.09 of
the Insurance Code. the commissioner is appointed by the State Board
of Insurance. In our opinion, he is within the article 6252-8a
definition of "employee." Accordingly, he is entitled to accrue
vacation time under article V. section 7 of the appropriations act,
and to payments for accrued but unused time under article 6252-8b.

                             SUMMARY

             The commissioner of insurance is entitled to
          accrue vacation time under article V, section 7 of
          the General Appropriations Act and to receive
          payments for accrued but unused leave time under
          article   6252-8b.    Attorney General Opinions
          M-1279, M-1280, H-715 and MW-517 are overruled to
          the extent that they




                                             JIM     MATTOX
                                             Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General




                                     p. 88
Mr. William P. Daves,   Jr. - Page 5     (JM-19)




Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Charmaine Rhodes




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