                       October 7, 1970
                                       OpinionNo, M-705
Hon. Luther T. Se&en                   Re: Whether (a) a county may
County Auditor                              pay its employees over-
Orange County Courthouse                    time pay at a premium
Orange, Texas 77630                         rate, and (b) a county
                                            ,auditor may disburse,pay-
                                            roll checks to county'em-
                                            ployees, in payment of
                                            accumulated vacation
                                            time, prior to the em-
                                            ployee's taking the
Dear Mr. Sebren:                            vacation.

          Your recent letter to this office requesting an opinion
conoerning the,referenced matter poses the following questions:

          "1. Can Orange County legally pay overtime
     pay of premium rate or at the regular rate far
     work performed in excess of forty hours per week?

          ”2 . Can the County Auditor legally disburse
     payroll checks to county employees in payment of
     vacation time prior to the vacation?"

          Dy a supplemental letter, you have informed this office
as follows concerning your questions:

          "All regular employees of Orange County, regard-
     less of which department they,may be employed in, as
     of January 1, 1970, are compensated on a monthly
     salary basis, based on the fact that Commissioners'
     Court on the second Monday of each January sets the
     annual salary of each employee for that year of which
     is considered a yearly contract based on a work week
     of eight (8) hours a day, five (5) days a week or
     two thousand eighty (2,080) working hours per year.


                            - 3407 -
Hon. Luther T. Sebren. page 2    (M-705)



    Funds are budgeted for salary purposes based on
    these total yearly salaries: therefore, funds in
    excess of the yearly amount would not be available
    for distribution. These yearly salaries remain
    within the maximum permitted to (be paid) under
    law for any and all employees, for example, Chief
    Deputy, Tax Asseseor and Collector is well within
    the maximum authorized by law; however, under a
    policy permitting the county to pay Premium Pay
    in excess of the yearly salary could very well
    amount to more than that permitted under law.

          “As to the question of whether or not the
     County Auditor can legally disburse salary checks
     to county employees in payment of vacation time
     prior to their vacation, the following information
     is hereby supplied:

          "Under our present system, employees take their
     earned vacation and their pay simply is carried on
     and the payroll check is issued at its regular
     scheduled time which is semi-monthly or on the 16th
     for the period of the 1st through the 15th and on the
     1st of the month for the period of the 16th through
     the last of the month. It has been my opinion that
     the county could not pay this salary prior to the
     close of the period for which it covered nor could
     they pay it in lieu of, same as we are required.'to
     do by law for wages, materials and supplies of every
     nature which cannot be legally paid for prior to.the
     county receiving same."

          We consider your first question as follows: This
opinion is restricted to regular officers and employe,esof the
county who hold office or who are employed on a yearly basis, on
an annual salary basis, and whose compensation is paid monthly.,
The question we consider and answer is whether such officers and
employee@ may be paid an additional sum or sums during the year
for wertime work.



                            -3408-
Hon. Luther T. Sebren. page 3     (M-705)



          Two classes of officers and employees exist within the
context of the situation we consider. First, those public of-
ficers whose maximum annual salary is fixed by statute, such as
County Attorney, County Judge, County Clericand any others, in-
cluding their deputies, clerks and assistants. Second, those
employees whose maximum salary is not set by statute, such as
those other than the class just mentioned, and employees, such
as secretaries, clerks, and others.

          The only limitations on the pay of any of these persons
by way of overtime pay for overtime work are the maximum salaries
eet by statutes and the budget of the county and the laws gwern-
ing amendment of the county budget.

          Those officers and employees whose maximum salary is
fixed by statute may not be paid for any one month's service
more than one-twelfth (l/12) of the maximum annual salary author-
ized by statute. Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324
(1956). With reference to those employees who are not drawing
the maximum salary provided by law, we know of no law which
would prohibi,tthe Commissioner's Court from amending the county
budget to provide for overtime pay so as to increase the monthly
salary of any officer or employee to cover some period of time
or times subsequent, and to cover additional hours to be worked
on the job in discharging the official duties of the office,
or position, subject to the holding in Scott v. Graham (supra),
and to the budset as adovted or as amended. Art. 689a-11,
689a-20, and wy,
             Be a                    136 Tex. 354, 150 S.W.Zd
980, 987-8 (1941).

          We do not consider the applicability, if any, of the
Federal Fair Labor S'tandardsAct, and any other United States
statutes dealing with overtime work and wertime pay. See
Barvland v. Wirtq, 392 U.S. 183 (1968).

          As for your second question, Article 2372h-1,   Vernon's
Civil Statutes, prwides as follows:


     gountv officer or the Commissioners Court, as the
     case mav be. shall have authoritv to vrwide for
     vacations, holidays fixed by State law, and sick

                             -3409-
Hon. Luther T. Sebren, page 4         (M-705)



     leaves, without deduction or loss of pay, and to
     provide for deductions for absences, for the em-
     ployees working under the elected county officer
     or his appointees or under the Commissioners Court
     or its appointees or under a County Commissioner or
     his appointees, regardless of whether the employee is
     paid on a fixed salary basis or on the basis of an
     hourly or daily wage. Nothing in this Act shall af-
     fect existing laws authorizing or regulating vacations,
     holidays, sick leave and absences for county employees,
     it being the intention of this Act only to prwide
     such authority with respect to the employees covered
     by this Act in counties where it does not now exist."
     (Emphasis added.)

          Section 53 of Article III      of the Constitution of Texas
provides as follows:

          "The Legislature shall have no power to grant
     or to authorize any county or municipal authority
     to grant any extra compensation, fee or allowance
     to a public officer, agent, servant or contractor,
     after service has been rendered or a contract has
     been entered into and performed in whole or in part:
     nor pay, nor authorize the payment of any claim
     created against any county or municipality of the
     State under any agreement or contract made without
     authority of law."

          If the employment contract authorizes it, then the checks
may be delivered to the employees at any time after the vacation
time is earned, and in accordance with the terms of the contract
of emplovment under which vacation time accrues.

          Section 52 of Article III of the Constitution of Texas
provides, in part, as follows:

          "The Legislature shall have no power to
     authorize any county ..- to grant public money
     or thing of value in aid of, or to any individual


          Payment may not be made for the time off from regular
duties which has accrued as vacation leave until that time off
is earned and has accrued under the terms of the contract of
                                -3410-
non. Luther T. Sebren, page 5       (M-705)



employment, because Sections 52 and 53 of Article III of the Con-
stitution of Texas, both quoted supra, prohibit payment for ser-,
vices, or their equivalent, in advance.

          We believe the law is settled to the effect that the
right to receive vacation leave, with pay, under.a contract of
employment which is otherwise valid under the above constitu-
tional provisions, is as much a part of the agreed compensation
as the compensation paid in money. Vacation pay is in the nature
of deferred compensation, payable at a later time, in addition
to compensation already paid during each pay period occurring
within the required period of employment. porten v. Gulf. Mobile
and Ohio Railroad, 277 F.Supp. 434. 437 (E.D. MO. 1967): 43A Words
and Phrases (Per:n.Ed.),"Vacation Pay" and "Vacation with Pay".
pp. 542-43. See, also, Bvrd v. City of Dallas, 118 Tax. 28,
6 S.W.Zd 738 (1928): Coffman vr Citv of Wichita Falls,,374
S.W.2d 798 (Tex."iv.App. 1964, error ref.) Citv of Orange v.
Chance, 325 S.W.Zd 838, 840 (Tex.Civ.App. 1959, no writ); and
Foreman v. Gooch, 184 S.W.2d 481 (Tex.Civ.App. 1944. error ref.
w.0.m.).

          The right to receive vacation pay accruing under the
contract of employment is held not to be forfeited by a termina-
tion of the contract. Kiddie Mfq. Co. v. United Electrical Radio
& Machine Workers of America, 99 A.2d 210, 213 (N.J.Sup.Ct. 1953).

          A court that construed Section 53 of Article Iii of
the Constitution of Texas. quoted supra, in regards to accumu-
lated sick leave, held as followst

          "The constitutional prohibition forbids paying
     extra compensation for past performance or adding
     additional considerat,ionto the contract already
     entered into . e .: the prohibition does not apply
     to oavment of any fund or sum based upon ths contract
     of employment nor does it apnlv to the method or time
     of uavment." Citv of Oranqe v, Chance, 325 S.W.Zd
     838 (Tex.Civ.App. 1959, no writ). (Emphases added.)

          In view of the foregoing, we find no prohibition of a
county disbursing payroll checks to county employees, in payment
of accumulated ,vacationtime, prior to the employee's taking the
vacation. On the other hand, we find no requirement that a
county is obligated to pay an employee for accumulated vacetion
time prior to the vacation period. We believe the time the

                                -3411-
   ,.      .




Ron. Luther T. Sebren, page 6       (M-705)



employee receives his vacation pay must be in accordance with
the contract of employment.

          We are of the opinion that Article 237211-lis suf-
ficient pre-existing law under Article III, Section 44, of our
State Constitution, to authorize the county to enter into con-
tracts with its employees to deliver to them their checks which
include their vacation leave at a time prior to the beginning
of such vacation, provided all of the vacation period has accrued
and been earned prior to the delivery of the check. The Legisla-
ture has recognized this contractual authority between the State
and its employees in Articles 6252-8 and 6252-Ea, authorizing
therein the payment of all accumulated vacation leave and for
one-half of the accumulated sick leave to the employee's estate
upon his death.

                             SUMMARY

             (1) A county may pay its officers and employees
        overtime pay, contracted in advance, and subject to
        the statutes which set maximum salaries for certain
        offices and positions, and subject to the provisions
        of the county budget as originally adopted and as
        lawfully amended.

             (2) A county may disburse payroll checks to
        county employees, in payment of accumulated vacation
        time, prior to the employee's taking the vacation if
        this action is in accordance with the contract of
        employment.
                                      n




                                          General of Texas

Prepared by Austin C. Bray, Jr.
Assistant Attorney General


                                -3412-
-.          .




     Hon.       Luther T. Sebren, page I       (M-705)



     APPROVED:
     OPINION CCMMITTEE

     Kerns Taylor, Chairman
     W. E. Allen, Co-Chairman

     Jim Swearingen
     Jim Broadhurst
     Jack Goodman
     Bob Lattimore

     MEADE F. GRIFFIN
     Staff Legal Assistant

     ALFRED WALKER
     Executive Assistant

     NOLA WHITE
     First Assistant




                                           -3413-
