                                         The Attorney          General of Texas
                                                           September 22, 1982
MARK WHITE
Attorney General


                                        Honorable George W. McNiel              Opinion No. MN-517
Supreme  Court Building                 Texas State Auditor
P. 0. BOY 12546
                                        John H. Reagan State Office Bldg.       Re:   Whether commissioner of
Austin,    TX. 76711. 2548
512/4752501
                                        P. 0. Box 12067                         education accrues vacation time
Telex    9101674-1367                   Austin, Texas   78711
Telecopier     5121475.0266
                                        Dear Mr. McNiel:
1607 Main St., Suite 1400
Dallas,   TX. 75201.4709
                                             You ask whether the commissioner of education is entitled to
2141742.6944                            accrue vacation time and, if so, to receive payment for any such
                                        entitlement upon termination of employment. We answer both questions
                                        in the negative.
4624 Alberta       Ave., Suite    160
EL Paso, TX.       7m5-2793
9151533.3464                                 Article 6252-8b, V.T.C.S., provides in pertinent part:

                                                      Section 1.     A state employee who resigns,
1220 Dallas Ave., Suite          202
                                                 is dismissed. or senarated from state emnlovment
Houston,   TX. 77002.6966
7131650.0666
                                                 shall be entitled to-be paid in a lump sum'for all
                                                 vacation time duly accrued at the time of
                                                 separation from state employment; provided the
606 Broadway,         Suite 312                  employee has had continuous employment with the
Lubbock.     TX.    79401.3479
                                                 state for six months. (Emphasis-added).
6061747.5236

                                        It is argued, first, that article 6252-8b, coupled with article
4309 N. Tenth. Suite 6                  6252-8a, V.T.C.S., creates in officers as well as in employees a
McAlten,     TX. 76501-1665             vested right to accrual of vacation time and entitlement to lump sum
5121662-4547                            payment upon termination of employment. Alternatively, it is argued
                                        that the commissioner of education is an employee, as opposed to an
200 Main Plaza, Suite 400               officer, and that as such he is entitled to a lump sum payment for all
San Antonio,  TX. 76205-2797            vacation time accrued at the time of separation from state employment.
5121225-4191                            We disagree with both arguments.

 An Equal      Opportunity/
                                             It is first argued that article 6252-8b, V.T.C.S., construed in
 Affirmative     Action     Employer    pari materia with article 6252-8a, V.T.C.S., creates in officers, z
                                        well as in employees, a vested right to accrual of vacation time and
                                        entitlement to lump sum payment upon termination of employment.
                                        Article 6252-8a, V.T.C.S., provides for the payment, of accumulated
                                        vacation time and one-half of accumulated sick leave to the estate of
                                        an employee upon that employee's death.        That statute defines
                                        "employee" to include "any appointed officer or employee." This
                                        argument rests upon two assumptions: (1) that article 6252-8b itself
                                        creates a right to accrual of vacation time and, (2) that the term




                                                                p. 1871
Honorable George W. McNiel - Page 2   (MW-517)




"employees" in article 6252-8b should be read to embrace those persons
who are embraced within the term "employees" in article 6252-8~~. If
article 6252-8b does not create a right to accrual of vacation time,
it is unnecessary to decide whether the term "employees" in article
6252-8b embraces state officers. We reject the first assumption and
thus decline to address the second.

     At issue are three separate and distinct rights. One right
derives from article 6252-8b, V.T.C.S., which creates in state
employees who resign, are dismissed, or are separated from state
employment the right to be paid in a lump sum for all vacation time
duly accrued at the time of separation from state employment. Another
derives from article 6252-8a, V.T.C.S., which provides that the state
will pay to the estate of an employee, upon his death, for all of the
employee's accumulated vacation time and for one-half of the
employee's accumulated sick leave. The third right is entitlement to
vacation time or sick leave. The employee must accrue vacation time
or sick leave before he or his estate is entitled to a lump sum
payment upon separation from employment or death. Neither article
6252-8a nor article 6252-8b entitles an employee to accrue vacation
time or sick leave. These statutes instead provide for lump sum
payment to certain employees who have already accrued vacation time or
sick leave pursuant to other legal authority.

     Article 6252-8b merely provides that, once an employee has
accrued vacation time pursuant to some other statutory or
appropriations act provision and that employee separates from state
employment, the employee is entitled to a lump sum payment for such
accrual. Ordinarily, words are presumed to be used in the sense in
which they are commonly understood. V.T.C.S. art. 5429b-2. §2.01;
Satterfield v. Satterfield, 448 S.W.2d 456 (Tex. 1969). The word
"accrue" has been construed by this office to mean "to come into
existence as an enforceable claim; vest as a right." Attorney General
Opinion M-1075 (1972). An employee is entitled under article 6252-8b
to lump sum payment for "all vacation time duly accrued." (Emphasis
added). This entitlement is created only after vacation time has
accrued, only after it has vested as a right; the statute itself does
not create an entitlement to vacation time.

     Since we conclude that article 6252-8b does not create a right to
accrual of vacation time, we need not determine the scope of the term
"employee" used in that statute. We next must determine the source of
the right to accrual of vacation time.

     There is no general law which provides accrual of vacation time
for state employees. Cf. V.T.C.S. art. 6252-8 (gives to hourly
employees who are continuously employed by the state for six months or
more whatever vacation rights may be granted to monthly employees);
V.T.C.S. art. 6252-8~1. Whatever vacation rights do exist for a person
employed by the state are part of his compensation and are found in




                                p. 1872
Honorable George W. McNiel - Page 3   (MW-517)




article V, section 7 of the various appropriations acts. See Attorney
General Opinions H-126 (1973); M-1280, M-1279 (1972).     -See    also
V.T.C.S. art. 6813b (all salaries of all state officers and state
employees to be provided for by legislature in biennial appropriations
act) ; Attorney General Opinion M-1252 (1972) (entitlement to vacation
time is a form of compensation or salary). One of the commissioners
about whom you are concerned served as commissioner from July 1, 1974,
until August 31, 1979; the other served from September 1, 1979, until
June 30, 1981.      Under the relevant provisions of each of the
appropriations acts then in effect, "[elmployees of the State" were
entitled to accrual of vacation time. Acts 1979, 66th Leg., ch. 843,
art. V, $7, at 2900; Acts 1977, 65th Leg., ch. 872, art. V, 57, at
3145; Acts 1975, 64th Leg., ch. 743, art. V, 87, at 2849; Acts 1973,
63rd Leg., ch. 659, art. V, 87, at 2199.

     No appropriations act has specifically conferred upon officers
the right to accrual of vacation time or sick leave. It has been
suggested that the proper construction of the phrase of the
appropriations acts, "[elmployees of the State," should include
officers as well as employees, that for purposes of the appropriations
acts the term "employees" should be read to include officers as well
as employees.    We reject this areument.        Statutes nrescribine
remuneration for public officers are strictly construed. 'M&alla v:
City of Rockdale, 246 S.W. 654 (Tex. 1922); Binford v. Robinson, 244
S.W. 807 (Tex. 1922). It is a rule of construction that, when a
statute is capable of two constructions, one which would give an
officer compensation for his services in addition to his salary and
the other which would not, the latter construction is the proper one.
Madden v. Hardy, 50 S.W. 926 (Tex. 1899); Allen v. Davis, 333 S.W.2d
441 (Tex. Civ. App. - Amarillo 1960, no writ). Attorney General
Opinion H-715 (1975), relying on two earlier opinions, concluded that
a state officer does not accrue annual leave. See Attorney General
Opinions M-1280, M-1279 (1972). The opinions construed the phrase
"employees of the State" to apply to employees but not to officers.
Because we have repeatedly recognized the distinction between officers
and employees, see, e.g., Attorney General Opinion MW-177 (1980), we
are unwilling to ignore that distinction in this context without
specific guidance from the legislature. In addition, the legislature
has met five times since the issuance of the first of these opinions
without changing the result.

     Finally, it is argued that the commissioner of education is a
state employee, presumably for all purposes, rather than an officer,
and, se such, is entitled to accrual of vacation time and to a lump
sum payment pursuant to article 6252-8b, V.T.C.S.

     We conclude that the commissioner of education is an officer.
rather than an employee. In Aldine Independent School District V.
Standley, 280 S.W.2d 578, 583 (Tex. 1955), the Texas Supreme Court
declared that "the determining factor which distinguishes a public




                               p. 1873
Honorable George W. McNiel - Page 4    (MW-517)




officer from an employee is whether any sovereign function of the
government is conferred upon the individual to be exercised by him for
the benefit of the public largely independent of the control of
others." See Green v. Stewart, 516 S.W.2d 133 (Tex. 1974); Harris
County v. Schoenbacher. 594 S.W.2d 106 (Tex. Civ. App. - Houston [lst
Dist.] 1979, writ ref'd n.r.e.); Attorney General Opinion MW-177
(1980).    Several of the duties and responsibilities of the
conmissioner which are set out in section 11.25 of the Education Code
clearly indicate that he acts with respect to certain matters at the
direction and on behalf of the State Board of Education. However,
section 11.52 of the Education Code posits a list of duties and
responsibilities placed upon the commissioner for which he alone is
responsible and which he exercises "largely independent of the control
of others." Aldine Independent School District v. Standley, supra.
For example, the commissioner is empowered to prescribe a uniform
system of forms and reports necessary to secure needed information
from local school officials. to require local officials to submit
reports and information that he deems necessary, to issue teaching
certificates to public school teachers and administrators, to issue
instructions and opinions regarding rules and regulations "which shall
be bindine for observance on all officers and teachers." Educ. Code
611.52(d);  (e), (g), (1).  See also Nixon-Clay Commercial College v.
Woods, 176 S.W.2d 1015 (Tex. Civ. App. - Galveston 1944, writ ref'd
w.o.m.); Gragg v. Hill, 58 S.W.2d 150 (Tex. Civ. App. - Waco 1933,
writ ref'd) (both cases establishing the public duties to be exercised
independently of the state board and reposed in the commissioner by
the predecessor to section 11.52, article 2656, V.T.C.S.).          We
conclude that, since he exercises a portion of the sovereign function
of government largely independent of the control of others, the
commissioner of education is an officer. Because the commissioner is
an officer, he is not entitled by the appropriations acts to accrual
of vacation time. Because he is not entitled to accrual of vacation
time, he is not entitled to a lump sum payment pursuant to article
6252-8b, V.T.C.S.

                             SUMMARY

             The commissioner of education is an officer who
          is not entitled under the appropriations acts to
          accrual of vacation time and to lump sum payment
          therefor upon separation from state employment.




                                        MARK      WHITE
                                        Attorney General of Texas




                                p. 1874
Honorable George W. McNiel - Page 5 (MW-517)




JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jim Moellinger
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison. Chairman
Jon Bible
Ed Davis
Rick Gilpin
Jim Moellinger




                               p. 1875
