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                                                            The Attorney          General of Texas
                                                                              October 12, 1983
         JIM MATTOX
         Attorney General



         Supreme               Court    Building          Mr. John S. Cargile                    Opinion No. ~~-76
         P.0.Box12546
         Austin.    TX. 7671% 2546
                                                          Chairman
         5121475.2501                                     Texas State University System          Re: Whether faculty member at
         Telex    9101674-1367                            Board of Regents                       Southwest Texas State University
         Telecopier     5121475.0266                      505 Sam Houston Building               may take vacation leave or lump
                                                          Austin, Texas   78701                  sum payment for accrued vacation
         714 Jackson,    Suite 700
                                                                                                 leave
         Dallas.   TX. 75202.4506
         2141742.6944                                     Dear Mr. Cargile:

                                                               You advise us that a tenured faculty member at Southwest Texas
         4624 Alberta              Ave., Suite      160
         El Paso, TX.              79905.2793
                                                          State University has accrued unused vacation time as a university
         91515333464                                      employee serving in an administrative capacity. You anticipate that
                                                          the person will remain a member of the faculty at Southwest Texas
                                                          State University and that, from time to time, the person will continue
-    -1001        Texas,    Suite 700                     to be employed part-time as a faculty member and part-time as an
             buston,     TX. 77002-3111
                                                          administrative employee. You ask our opinion as to whether this
             7131223-5666
                                                          person is entitled either to be paid in a lump sum for the unused
                                                          vacation time or to take vacation leave with pay.
         606 Broadway.                  Suite 312
         Lubbock.     TX.              79401.3479              We believe that the status of a faculty member under the facts
         6061747-5236                                     presented to us makes the member ineligible to receive a lump sum
                                                          payment of accrued vacation time but eligible to take certain vacation
         4309 N. Tenth, Suite B                           leave without deduction in salary.
         McAllen,     TX. 76501-1665
         5121662-4547                                          In 1975, the legislature provided by general law that a state
                                                          employee continuously employed for at least six months is entitled to
         200 Main Plaza. Suite 400
                                                          be paid in a lump sum for accrued vacation time when the employee
         San Antonio,  TX. 76205.2797                     resigns or is dismissed or separated from state employment. V.T.C.S.
             5121225-4191                                 art. 6252-8b. See Acts 1981, 67th Leg., ch. 875, art. V, 87(a), at
                                                          3799 (current biennial Appropriations Act); Senate Bill No. 179, Acts
                                                          1983, 68th Leg., art. V, 98, at V-34 of the Conference Committee
             An Equal          Opportunity/
             Affirmative         Action     Employer
                                                          Report (Appropriations Act for 1983-1985 biennium). As a faculty
                                                          member, the person is an employee with a contractual relationship
                                                          governed by state law, the Rules and Regulations of the Board of
                                                          Regents of the Texas State University System, and the terms of his
                                                          appointments for specific fiscal years. The fact that the contract of
                                                          a faculty member who will return the following year provides a period
                                                          of appointment for nine months that does not include the summer months
                                                          does not constitute a termination or separation of state employment
                                                          during the summer months.




                                                                                    p. 322
Mr. John S. Cargile - Page 2    (JM-76)




     In  OUT opinion, the word       "appointment" as used in the
appropriations act, contemplates only the periods during which
particular services are required to be rendered. Although neither
required by the contract of employment to teach or to serve in an
administrative capacity during the summer nor entitled to a salary for
services rendered during that period, a faculty member remains an
employee with certain obligations and benefits.        These benefits
include coverage for medical and hospital insurance, the use of
university facilities (offices, libraries, etc.), and other benefits
generally available to faculty members. In our opinion, a faculty
member who will be returning for the fall semester is not separated
from state employment during the summer and, therefore, is not
eligible for payment of accrued vacation time in a lump sum. See
Attorney General Opinions MW-282 (1980); H-1096 (1977); M-1279 (1972);
M-1252 (1972).

     Vacation time of state employees is payment for services rendered
and salary within the meaning of that part of article 6813b, V.T.C.S.,
that provides "all salaries of all . . . State employees . . . shall
be in such sums or amounts as may be provided for by the Legislature
in the biennial Appropriations Act." See Attorney General Opinion
M-1252. The right of a state employee at-y    given time to a vacation
from his duties without deduction in salary depends on the provisions
of the current biennial appropriations act. Beginning with the act
passed in 1981, the legislature excepted faculty with appointments of
less than 12 months at institutions of higher education from the
provision authorizing paid vacations for "employees of the state."
The general appropriations acts for the fiscal years beginning
September 1, 1981 and ending August 31, 1985 provide the following:

         Other than faculty with appointments of less than
         twelve months at institutions of higher education,
         employees of the State shall, without deduction in
         salary, be entitled to a vacation in each fiscal
         pal-.

Acts 1981, 67th Leg., ch. 875, art. V, 97a, at 3798; Senate Bill No.
179, Acts 1983, 68th Leg., art. V, 98, at V-34 of the Conference
Committee Report. Each appropriation act specifies the hours of
vacation accrued each month by state employees on the basis of their
years of state employment and the maximum hours they may carry forward
from one fiscal year to the next fiscal year. In addition, each of
those acts defines a "regular employee" of an institution of higher
education as one who is employed to work at least 20 hours per week
for a period of at least four and one-half months, excluding certain
students, and provides that only regular employees of such
institutions are eligible for paid vacation.

     Accordingly, when a person is employed by Southwest Texas State
University as an administrative employee, either on a full-time basis
or on a part-time basis that qualifies the person to be a "regular



                                 p. 323
          Mr. John S. Cargile - Page 3       (JM-76)


--,


          employee," he is an employee of the state within the meaning of the
          current appropriation act whether or not he is simultaneously a member
          of the faculty. As such, he is entitled to accrue and carry forward
          vacation leave and to take a vacation from his administrative duties
          without deduction in his administrative salary. nowever, a faculty
          member at Southwest Texas State University with a teaching appointment
          of less than 12 months for the fiscal year does not accrue vacation in
          that capacity and is not entitled to use leave accrued as an
          administrative employee to take a paid vacation from his duties as a
          faculty member.

                                         SUMMARY

                       Under current appropriation acts, a member of
                    the faculty at an institution of higher education
                    who, as an administrative employee, qualifies for
                    the accrual of vacation leave is entitled to take
                    a vacation from his administrative duties without
                    deduction in his administrative salary. A faculty
                    member who has a teaching appointment of less than
                    12 months during the fiscal year and who will
                    return the following year to the institution of
                    higher education has not interrupted his state
-,    c             employment and is not entitled to a lump sum
                    payment for accrued vacation leave.          .




                                                   JIM     MATTOX
                                                   Attorney General of Texas

          TOM GREEN
          First Assistant Attorney General

          DAVID R. RICHARDS
          Executive Assistant Attorney General

          Prepared by Nancy Sutton
          Assistant Attorney General

          APPROVED:
          OPINION COMMITTEE

          Rick Gilpin, Chairman
          David Brooks
          Susan Garrison
          Jim Moellinger
          Nancy Sutton




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