                      The Attorney               General of Texas
                                       January        31,     1980
MARK WHITE
Attorney General

                   Honorable Bill M. White                       Opinion No. MW-13 6
                   Criminal District Attorney
                   Bexar County Courthouse                       Re: Vacations for jailers in Bexar
                   San Antonio, Texas 78205                      County.

                   Dear Mr. White:

                          You have asked us to determine the law governing the allowance of
                   vacation time for sheriff’s deptities assigned jail guard duty at the Bexar
                   County jail.

                        Article 1041b, Code of Criminal Procedure, specifies, in part:

                              Every member of the sheriff’s department assigned to
                              duty as jailer, jail guard, or jail matron at any county
                              jail in any city of more than twenty-five thousand
                              (25,000) inhabitants shall be allowed fifteen (15) days
                              vacation in each year with pay.

                   You suggest this statute conflicts with the authority        conferred   upon the
                   commissioners court by article 2372h, V.T.C.S.

                          The latter statute, enacted several years later than article    1041b,
                   provides that commissioners courts in counties having a population of
                   500,000 or more shall have authority to formulate rules and regulations
                   governing the hours of work, sick leave, medical care, and vacations, among
                   other things, for certain county officers and employees, including deputy
                   sheriffs. Section 1 of article 2372h clearly states:

                              . . . but all such regulations with~respect to deputies
                              . . . shall conform to laws now in effect or as may
                              hereafter be enacted by the Legislature. . . .

                          Article 1041b no longer controls, however. The enactment in 1971 of
                   article 3912k, V.T.C.S., repealed every prior law to the extent it prescribed
                   “the compensation, office expense, travel expense, or any other allowance
                   for any official or employee” covered by the new statute.       V.T.C.S. art.
                   3912k, s 8. Deputy sheriffs acting as jailers are covered by article 3912k.
                   Attorney General Opinion H-1161 (1978). cf. Attorney General Opinion




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Honorable Bill M. White    -   Page Two    (NW-136)



H-985 (1977) (deputy sheriffs not covered by civil service laws). Vacation benefits are a
form of compensation.    Attorney General Opinions H-941 (1977); H-51 (1973). See Coffman
v. City of Wichita Falls, 374 S.W.2d 798 (Tex. Civ. App. - Fort Worth 1964=-
Thus, to the extent that article 1041b purports to prescribe vacation benefits for sheriff’s
deputies, it has been repealed. -See Attorney General Opinion H-572 (1975).

      Under the first section of article 3912k, the commissioners court has authority to fix
the amount of compensation, office expense, travel expense, and all other allowances for
such deputies paid wholly from county funds, provided that

                 in no event shall such salaries be set lower than they existLed
           it* ;he effective date of this-Emphasis         added).

In the past, this office has made a distinction between the terms “compensation” and
“salaries” as used in article 3912k, considering the former to be a broad term inclusive of
the latter.   Attorney General Opinion H-335 (1974). But vacation entitlement and sick
leave benefits have been considered “salary.” Attorney General Opinions H-R42 (1978);
H-860 (1976); M-1252 (1972). See Hairston v. Richie, 338 S.W.2d 263 (Tex. Civ. App. -
Fort Worth 1960, no writ); Attorney General Letter Advisory No. 89 (1975). At the time
article 3912k was enacted, the vacation entitlement of deputy sheriffs acting as jailers
was set by article 1041b at fifteen days per year.

       Although the prohibitory proviso of article 3912k prevents the commissioners court
from reducing the salaries paid at the time it took effect, it &es not prevent it from
changing the form in which those salaries are paid Cf. Attorney General Opinion H-429
(1974). Since articles 2372h, V.T.C.S., and 1041b, Coxof     Criminal Procedure, no longer
control the vacation policy of the Bexar County Commissioners Court with respect to
deputy sheriffs serving as jailers, the commissioners court need not allow such deputies
more vacation entitlement - a particular form of salary - than it allows others, so long
as it &es not reduce the total value of their salaries below the total value of the salaries
applicable to those positions when article 3912k, V.T.C.S., became effective on January 1,
1972. Attorney General Opinion H-1142 (19’78). See Broom v. Tyler County Commissioners
Court, 560 S.W.2d 435 (Tex. Civ. App. - Beaumont 1977, no writ). Cf. Renfro v.
Shropshire, 566 S.W.2d 688 (Tex. Civ. App. - Eastland 1978, writ ref’d n,r.x

      We have not overlooked Attorney General Opinion H-1297 (1978), which concerned
the construction of article 1041b, Code of Criminal Procedure. That opinion involved a
more narrow question and did not address the relationship of article 1041b with article
3912k.

                                      SUMMARY

           The Commissioners Court of Bexar County need not allow deputy
           sheriffs serving as jailers more vacation entitlement than it allows
           others, so long as it does not reduce their salaries (in whatever




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Honorable Bill M. White   -   Page Three        (NW-136)



           forms such salaries are paid) below the salaries applicable to those
           positions when article 3912k, V.T.C.S, became effective.

                                           $-g?$/.$



                                                Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Jim Allison
David B. Brooks
Bob Gammage
Susan Garrison
Rick Gilpin
Bruce Youngblood




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