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                   Honorable J. C. Dingwall            Opinion No. M- 811
                   State Highway Engineer
                   Texae Highway Department            Re:   Right of estates of de-
                  ‘Austin, Texas 78701                       ceased state regular
                                                             “hourly employees” to
                                                             recover for vacdtion and
                                                             sick leave due deceased
                  Dear Mr. Dingwall:                         emplqyee.
                            You have advised us that the State Comptroller has
                  interpreted Attorney General Opinion No. M-731 (1970) ae hold-
                  ing, In effect, that it Is neceesary that a regular ‘hourly
                  employee” be a classified ealarled employee in order ,to,author-
                  lze death eettlemente .to.their estates and for vacat1o.qand
                  elck leave. Our opinion ie now requested on how payments may
                  be secured to the estates of deceased etate regular’hourly
                  employees on the same baeie as payment Is prescribed to be made
                  to the estates of claesified ealarled employees.
                            You state, in part, that
                            “The Claims Division of the State Comptroller’s
                       Office has refused payment of the death settlement
                       to the estate of one of our regular hourly employees
                       because they interpret this Opinion as making it
                       necessary that an hourly employee be a classified
                       salaried employee. . . Prior to the leeuance of
                       Opinion M-731 we were able to pay 115 death settle-
                       ments, one-half being to estates of deceased hourly
                       employees. . .‘I
                             Our Opinion M-731 did not specifically consider the
                   statue or right of the estates of deceased state regular hourly
                   employees to recover for vacation and sick leave. So-called
                   “hourly employees” are expressly exempted from the Position
                   Classification Act, Article 6252-11, Vernon’s Civil Statutes,
                   Section 2, fourth paragraph, along with part-time and temporary
                   employees.
                             Certain specified “hourly employees” are entitled to
                   accumulated vacation and sick leave under Article 6252-8a,

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Honorable J. C. Mngwall,   page 2 (M-811)


Vernon's Civil Statutee,  and under the General Appropriation
Bill, House Bill 2, 6let Legislature, 1969, 2nd Called Session.
Article 6252-8a,  providing for payments of accumulatec! vacation
nnd sick leave to estates of state employees, covers . . .
311~aDDointed officer or emnlovee in a deoartment of the .?tate
iyhjlh'employed on a basis jr in a posItI& normally requlr.i~np,
not less than 900 hours per year. . .II(emphasis added) and
not otherwise thereinafter excepted from the coverage.

          Article V, Section 7f of the General Appropriation
Bill (supra, p. 1017 of the Session Laws!)provides that funds
appropriated in that act for salaries and wages
          'may be paid for all of the employee's accu-
     mulated vacation leave and for one-half of hie
     accumulated elck leave to the estate of an em-
     ployee ?Jheneald employee dies while employed
     bv the State of Texae. The oavment shall be
     calculated at the rate of comp&atlon   being
      aid the employee at the time of hia death.
      emphaele added).
bJhileSection 7a of Article V of this Bill makes certain pro-
visions for vacation and leave entitlements ae to "annual em-
ployees", there is no prohibition therein excluding entitlement
to the estates of deceased regular hourly employees who are
          II
           . . .employed on a basic or In a
     position normally requiring not less than
     900 hours per year. . ."
and VJhOse term of employment IS contemplated to be, and doea in
fact continue for, the entire calendar year under the terme of
that employment. Thle Section 7a does provide, however, that
          "No employee shall be allowed any paid
     vacation entitlement until he has had continuous
     employment with the State for six (6) months."
          We have concluded, therefore, that neither Article
6252-8a nor the General Appropriation Act (H. B. 2, 61st Leg.,
Acts 1969, 2d C.S.) makes It necessary that an “hourly employee”
be a classified salaried employee in order that his estate,
upon hi? death, become entitled to recover for accumulated
vacation and sick leave, providing the foregoing statutory con-
ditions are met and no General Appropriation Act conditions
are violated.

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Honorable J. C. Dingwall, page 3 (M-811)


          Each state department head must make the factual
determination as to whether the regular hourly employee “18
employed on a basis or in 8 ~osltlon normally requiring not
less than 900 hours per year and whose term of employment
is contemplated to be and does In fact continue for the
entire calendar year under the terms of that employment.
If the hourly employee is so employed, his estate upon hle
death is entitled to recover for any accumulated vacation
and sick leave the employee has accrued under the law, and
provided no condition of the appropriation grant 1s vlolated.
                       ‘8 found not to be employed on thie
;,’;he hourly employee I
  s s, then his estate is not entitled to recover for accumu-
lated vacation or sick leave time. For the purpose of paying
accrued vacation and elck leave upon the death of such an
hourly employee, his estate should be pald for the same
number of calendar days ae to which the employee would have
been entitled had he lived and claimed such vacation and elck
leave on the date following the date of his death and until
such accrued leave time expirea.
                        SUMMARY
           The estates of regular “hourly employees” are
     entitled to recover for accrued vacation and sick
     leave under Article 625%8a,   V.C.S., providing  the
     decedents are employed on a basis or In a position
     normally requiring not less than 900 hours per year,
     and if not otherwise excepted from the statute,    and
     provided no condition of the grant la violated bye
     the General A propriatlon Act (H. B. 2, 61sttig.
     1969,  2d C.S.7. The estate8 should be paid for the
     game numberof calendar days as to which the employee
     would have been entitled had he lived and claimed
     such vacation and sick leave on the date following
     the date of his death and until such accrued .leave
     time expires.
                              Yours   very   truly,

                              CRAWFORD C. MARTIN
                              Attorney General of Texas




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Honorable J. C. Dlngwall, page 4 (M-811)


Prepared by Kerns Taylor
Aselstant Attorney General
APPROVED:
OPINION COMMITTEE
W. E. Allen, Acting Chairman
J. C. Davis
John Reeves
S. J. Aroneon
Jack Goodman
MEADE F. GRIFFIN
Staff Legal Aasletant
ALFRED WALKEB
Executive   Assistant




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