                      The Attorney              General of Texas
                                         December     20,    1978
JOHN L. HILL
Attorney General


                   Honorable Henry Wade                             Opinion No. H- 12 9 7
                   Criminal District Attorney
                   Dallas County                                    He: Constitutionality of article
                   Sixth Floor, Records Building                    1041b, Code of Criminal Proce-
                   Dallas, Texas 75202                              dure, relating to vacations for
                                                                    jailers.

                   Dear Mr. Wade:

                         You have requested our opinion concerning the construction         of article
                   104lb of the Code of Criminal Procedure which provides:

                                 Vacations for jailers, jail guards and matrons

                                  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, not more than
                              two (2) members to be on vacation at the same time;
                              provided that the provisions of this Section of this Act
                              shall not be applied to any such jailer, jail guard, or
                              jail matron in any city of more than twenty-five
                              thousand (25,000) inhabitants,     unless such member
                              shall have been regularly employed as such jailer, jail
                              guard, or jail matron for a period of at least one year.
                                 Each preceding Federal Census shall determine the
                              population.
                                 The sheriff having supervision of the county jail
                              shall designate the days upon which each jailer, jail
                              guard, or jail matron shall be allowed to be on
                              vacation.
                                 The sheriff having supervision of the county jail in
                              any such city who violates any provision of this Article
                              shall be fined not less than Ten Dollars ($10) nor more
                              than One Hundred Dollars ($100).




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Honorable Henry Wade       -   Page 2        (H-1297 )




        The basic purpose of this statute is to give a statutory vacation period to jail
 guards, jailers and jail matrons who work in the county jail of a larger metropolitan
area. Your question involves the conflict which arises in larger counties where it is
impossible to provide each jailer, jail guard or jail matron with 15 days vacation and
to schedule the vacations so that no more than two are on vacation at any one
time. This situation occurs when there are at least 35 employees who are entitled
to vacation during the year. We believe the clear intent of the legislature was to
require that a sufficient number of jail personnel is always present to insure
adequate security.       It is doubtful that the legislature contemplated   that there
might be counties employing a jail staff which is so large that it is impossible to
provide 15 days vacation for each employee unless more than two are on vacation at
the same time. We believe that the statute must be interpreted to reflect the
legislative intent and that each jail guard, jailer or jail matron who has been
employed for at least one year is entitled to an annual vacation of 15 days even
though it may result in more than two employees being on vacation at the same
time. The sheriff should insure that the legislative intent is fulfilled by arranging
the vacations so that adequate security is always provided. See generally V.T.C.S.
art. 5115.1,S 9(a)(3).

       You ask how the 15 day period is to be calculated. A Court of Civil Appeals
has construed a statute very similar to 1041b which provided that members of fire
departments in cities of more than 30,000 inhabitants were to be given 15 days
vacation.    In the dispute over whether or not vacation time had been given, the
court reasoned that a day of vacation is a dav off from work which would otherwise
be a normal working day but for the vacation.     Coffman v. City of Wichita Falls,
374 S.W.2d 798 (Tex. Civ. App. - Fort Worth 1964, writ ref’d). This definition
excludes legal holidays and other non working days from being included in the 15
day vacation period to be given jail guards. See also Attorney General Opinion V-
1072 (1950).

                                   SUMMARY

           Jail guards who have regularly been employed as such for
           one year receive 15 days vacation         from work.    The
           prohibition against more than two guards on vacation at the
           same time is ineffective if impossible to comply with.




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    Honorable Henry Wade   -   Page 3    (B-l2g7)




    APPROVED:




    C. ROBERT HEATH, Chawman
    Opinion Committee




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