    OFFICE OF THE ATTORNEV   GENERAL.   STATE OF TEXAS

    JOHN    CORNYN




                                                  October 7, 1999



Mr. William H. Law                                       Opinion No. X-0123
Polk County Auditor
10 1 West Church Street                                  Re: Whether a county officer may be credited or
Livingston, Texas 77351                                  compensated for unused vacation time he earned
                                                         while a county employee   (RQ-0067-JC)


Dear Mr. Law:

        We understand from your letter that Polk County’s personnel policy permits a county
employee to be credited for unused vacation time each year. The unused vacation time is credited
to the employee on the anniversary of the employee’s starting date, and not before. As we
understand the policy, if a regular employee resigns before his anniversary date, any unused vacation
time earned in the service year of his resignation is lost. County officers do not accrue vacation
time.

        You tell us that a Polk County employee resigned his employment on December 3 1, 1998,
and was sworn in as a county officer on Januzy 1,1999. His anniversary date as a county employee
fell on January 1, 1999. You ask whether the county may credit or compensate the county officer
for the unused vacation time he earned as a county employee. You also ask whether crediting or
compensating the officer for the time would constitute “duplicate compensation.”

         A county commissioners court sets the compensation of county and precinct officers and
employees paid wholly from county funds, with certain exceptions. See TEX. Lot. GOV’T CODE
ANN. # 152.011, .017 (Vernon 1999). As part ofcompensation,       a commissioners court may grant
vacation and sick leave benefits and pay or credit personnel for unused portions of such benefits.
See Tex. Att’y Gen. Op. No. JM-910 (1988) at 4; Tex. Att’y Gen. LO-98-099, at l-2. We assume
that the vacation leave policy you describe was adopted by the commissioners court and constitutes
part of the compensation of county employees.

        According to the county’s personnel policy as you have described it, the officer may not be
credited with the unused vacation time he earned as a county employee. He resigned his county
employment before his anniversary date. Consequently, in accordance with the county’s personnel
policy, unused vacation time for the year was lost. Although he remained on the payroll of the
county as a county officer, county officers, you tell us, do not accrue vacation time. Nor is there,
as far as we know, any county policy providing for transfer of unused leave in the event a county
Mr. William H. Law - Page 2                      (X-0123)




employee becomes a county officer.     Thus, the vacation time cannot be credited to him as a county
officer.

         A county commissioners court is not prohibited from adopting a personnel policy whereby
unused vacation leave is credited to an employee before the employee’s anniversary date, or whereby
unused leave is paid to an employee in a lump sum upon resignation, or whereby unused leave
follows an employee if the employee becomes a county officer, or which in some other manner
would have prevented the officer in this case from losing his accrued vacation benefits. But any
policy adopted by the commissioners court that would increase an employee’s benefits must operate
prospectively, not retrospectively.  Otherwise, as your question suggests, the officer would receive
“extra compensation” for the work he performed as a county employee.

        Article III, section 53 of the Texas Constitution prohibits a county from granting any “extra
compensation,        after service has been rendered, or a contract has been entered into, and performed
in whole or in part.” TEX. CONST. art. III, 5 53. Benefits that are part of an employee’s
compensation package while the employee is performing the work are not “extra compensation.”
See Ward v. City ofSun Antonio, 560 S.W.2d 163,165-66 (Tex. Civ. App.-San Antonio 1977, writ
ref d n.r.e.). But an increase in benefits approved after the work has been performed may not be
applied retroactively to work that has already been performed. See Pierson v. Galveston County, 13 1
S.W.2d 27, 29 (Tex. Civ. App.-Austin 1939, no writ); Tex. Att’y Gen. Op. Nos. JM1160 (1990)
at 2; H-l 1 (1973) at 4; Tex. Att’y Gen. LO-98-099, at l-2.

        We understand Tom your letter that when the officer in question resigned his employment
from the county, the county personnel policy provided that an employee could not be credited with
unused vacation time until the anniversary of the employee’s starting date. Because the officer
resigned his employment before his anniversary date, his unused vacation leave was lost. The
commissioners court may not adopt and apply retroactively a policy that would allow the officer to
be credited or compensated for the lost vacation time.
Mr. William H. Law - Page 3                      (X-0123)




                                       SUMMARY

                       Where a county’s personnel policy provides that an
               employee’s unused vacation time is credited to the employee on the
               anniversary of the employee’s starting date, and not before, a county
               employee who resigns before his anniversary date and becomes a
               county officer may not be credited with unused vacation time. A
               commissioners court may not adopt and apply retroactively a policy
               that would allow the officer to be credited or compensated for the lost
               vacation time.




                                              Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee
