                      The Attorney        General       of Texas
                                    November 23, 1971
J,OHNL.HILL
Mornay Gensfal


                 Honorable George W. McNiel             Opinion Non. H-1096
                 State Auditor
                 Sam Houston State Office Building      Re: Whether a short
                 P. 0. Box 12067                        period between employment
                 Austin, Texas   7871.1                 by two different state
                                                        agencies constitutes a
                 Dear Mr. McNiel:                       break in state employment.

                      You have asked whether a short period between employ-
                 ment by two different state agencies constitutes a break
                 in state employment sufficient to require payment for accrued
                 leave.

                      An employee who resigns, is dismissed or is separated
                 from state employment is entitled to receive payment for
                 any unused vacation time he has accumulated.  General
                 Appropriations Act, Acts 1975, 64th Leg., ch. 743, at 2949.
                 Persons whose'employment with the state ended September 1,
                 1975, orlater  were also entitled to be paid for one-half
                 of their accumulated sick leave. General Appropriations
                 Act, Acts 1975,~ch. 743, at 2850. This policy was termi-
                 nated on August 31, 1977. and persons leaving state employ-
                 ment after that date are not entitled to be paid fcr any
                 percentage of their unused sick leave.

                      The Legislature's termination of the policy of payments
                 for sick leave created financial incentives to terminate
                 state employment before August 31, 1977, with the result
                 that similarly situated employees were treated differently
                 depending on the time and method by which they left their
                 state jobs. While we question the policy which permits
                 radically different treatment of employees o,n the largely
                 fortuitous circumstance of how and' when an individual leaves
                 the State's employ, we are not at liberty to ignore or add
                 to the statutory language adopted by the Legislature.

                      Your question involves an employee who resigned from
                 the State Auditor's Office on June 36, 1977, and had secured
                 employment with another state agency beginning eleven days




                                                P. 4497
Honorable George W. McN'iel    - Paw    2   (x-1096)



later. Article V, section 7e of both the 1975 and 1977
Appropriations Act indicates how an employee's leave is han-
dled when he transfers from one state agency to another. That
section provides:

          A state employee who transfers directly
          from one State agency to another, shall
          be given credit by the receiving agency
          for the unused balance of this accumu-
          lated vacation and sick leave, provided
          that his employment with the State is
          uninterrupted.

Article V, 9 7e, at 2851 (1975) and at V-33     (1977).

     Thus the issue becomes whether the e.leven day break between
the two jobs constituted an interruption in state employment.

     "Termination of employment" has been defined as "the com-
plete severance of the relationship of employer and employee."
Pan American Life Insurance Co. v. Garrett, 199 S.W.Zd 819, 821
(Tex. Civ. App. -- El Paso 1946, no writ).   Such severance must
occur by the-positive act of either employer or employee.
Edwards v. Equitable Life Assurance Society, 177 S.W.Zd 574,
577 (KY. Ct. App. 1944); Here the employee resigned and specif-
ically asked that his resignation be treated as a termination.
There was no attempt to seek leave without pay or to remain on
the payroll until the employee's vacation time was exhausted.
It is~well established that an employee's unused vacation time
does not extend his term of employment, and that ~payment for
accrued annual leave "has no significance in determinina Lhe
date" of separation from employment.   Funderburk v. Metropolitan
Life Insurance Co., 146 So.Zd 710, 715 (La. Ct. App. 1962); Wyatt
v. Security Benefit Life Insurance Co., 263 P.2d 243. 246 (Kan.
1955). See Mutual Life Insurance Co. of New York v. Presbyterian
Hospital-   Dallas, 503 S.W.Zd 870, 874 (Tex. Civ. App. -- Dallas
1973, writ ref'd n.r.e.1.

     In our opinion, this eleven day break in'state employment
entitles the state employee to payment for accrued leave, without
regard to the amount'of leave to which the employee is entitled
at the time of his separation, and without~regard to whether the
employee subsequently resumes state employment. Accordingly, we
believe that a short period between employment by two different
state agencies constitutes~an interruption in state employment
sufficient to require payment for accrued leave.




                              P. 4498
              I
:   - .’
           Honorable George W. McNiel         - Page 3   (H-1096)



                                    SUMMARY

                       A short period between employment by two
                       different state agencies constitutes an
                       interruption in state employment sufficient
                       to require payment for accrued leave.

                                              Very truly yours,




                                              Attorney General of Texas

           APPROVED:




           DAVID H. KENDALL, First Assistant




           C. ROBERT H~?l'fi.Chairman
           Opinion Comittee

           jst




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