   The Attorney                 General of Texas
                       September 23. 1981



Honorable Buck Florence, Chairman           Opinion No. ~~-369
House of Representatives
Committee on Judicial Affairs               Re: Whether      sick leave  and
P. 0. Box 2910                              vacation benefits are wage con-
Austin, Texas 78769                         tinuation   programs  under  the
                                            Crime Victims Compensation Act

Dear Representative     Florence:

      You ask whether sick leave and vacation benefits are “wage continua-
tion prcgramsv within section 3(3)(p) of article 8309-1, V.T.C.S., the Crime
Victims Compensation Act, and whether sick leave and vacation benefits
which are used are compensable under section 3(7)(ARiD.

       Article 8309-l affords a means of indemnifying crime victims and
individuals who suffer personal injury or death while attemptiq  to prevent
crimes. Section 2. Eligibility for awards of compensation is determined by
the Industrial Accident Board in accordance with the criteria prescribed
therein. Section 6 provides that:

               (b) The board shall establish that ~BSa direct result
           of criminally injurious conduct the victim suffered
           physical injury or death that resulted in a pecuniary
           loss which the victim is unable to recoup without
           suffering financial stress and for whmh he or she IS
           not compensated from any collateral source.

               (c) The board shall deny the application   if:

               . . .

                (3) the claimant will not suffer financial stress as
            a result of the pecuniary loss arising out of criminally
            injurious conduct. . . . (Emphasis added).

Section 3 provides that:

                (3) “Collateral source” means a source of benefits
            or advantages for pecuniary loss awardable other than
            under this Act which the victim has received, or
            which is readily available to him or her from:

               . . .




                               p. 1235
Honorable Buck Florence       - Psge Two     (MU-369)




                (P) *rage continuation   programs of any employer;

                . . .

                (6) ‘Financial stress’ means financial hardship experienced by
            a claimant as a result of pecuniary loss from criminally
            injurious conduct. . . . A claimant suffers financial stress only
            if he or she cannot maintain his or her customary level of
            health, safety, and education for himself or herself and his or
            her dependents without undue financial hardship. In making its
            finding, the board shall consider all relevant factors, including:

               . . .

            ,d(D)       the elm‘mant’s income and potential    earning capacity;


               (E) the claimant’s resources.       (Emphasis added).

       When the act is considered as a whole, we think it is clear that the legislature
intended that it would be used only as a last resort to indemnify victims of crime for
certain losses resulting from criminally injurious conduct. In order to be eligible for
compensation,’ a claimant must demonstrate (1) that he has suffered an injury which
results in a pecuniary loss; (2) that he is unable to recoup that loss without suffering
financial stress; and (3) that he will not bs reimbursed for the loss from some
collateral source. Each condition must be satisfied.

       Sick leave and vacation benefits may or may not be the fruits of a “wage
continuation program,” depending upon the particular leave program .in question. See.
e.~&, New Mexico v. Weinberger, 517 F. 2d 989 00th Cir. 1975),cert denied, 423 U.S.
1051 (1976); Attorney General Opinion H-1303 (19781 In our opinion, however, it is
unnecessary to determine whether such benefits are “wage continuation programs”
within section 3(3)(F) of article 8309-1, because whether they may be properly
described as such in a particular case will have no bearing on whether they are to be
taken into consideration by the Industrial Accident Board in deciding whether to award
compensation.    The board must determine, among other things, whether a claimant will
suffer financial stress as a result of the pecuniary loss arising out of the criminally
injurious conduct. If he will suffer no such stress, he is not eligible for compensation.
V.T.C.S. art. 8309-1, S6(c)(3). In making this determination, the board must take into
account all of the resources at the person’s command, V.T.C.S. art. 8309-1, S3(6l(E),
which resources will obviously include any accrued vacation and sick leave due him.
The restricted list of “collateral sources” found in the statute signifies those sources to
which the state will be subrogated if compensation is awarded.          It is clearly not an
exhaustive list of sources which the board must consider in deciding whether, and to
what extent, to make an award. V.T.C.S. art 8309-1, SS6(c)(3), U(a).

      We therefore conclude that sick leave and vacation benefits available to a
claimant who is the victim of criminally injurious conduct are to be taken into account




                                         D. 1236
Honorable Buck Florence    - Page Three     (MW-369)




by the Industrial Accident Board in determining whether the claimant can recoup his
losses without suffering financial stress, regardless of whether said benefits may
technically be described as a “wage continuation program.” If the claimant can do so,
he is not eligible for compensation under article 8309-l.

     You next ask whether sick leave and vacation benefits          which are used are
compensable under section 3(7)(A)(B). Section 3(7) provides that:

               ‘Pecuniary loss’ means the amount of expense reasonably and
           necessarily incurred:

               (A) regarding personal injury for:

               . ..

                  (ii) actual loss of past earn” s and anticipated loss of
                  future earnings because +o a dmability resulting from the
                  personal injury at a rate not to exceed $150 per week.
                  (Emphasis added).

We assume your question involves an employee who uses sick leave and/ or vacation
leave accrued prior to the time of his injury to cover all or a portion of the period of
time he is absent from work because of an injury resulting from criminally injurious
conduct.

       In order for used sick leave and vacation leave to be compensable under section
3(7)(A)(B), it would have to constitute lost past earnings within the meaning of that
provision at the time the board makes its award. We do not believe it does. In our
opinion, earnings denote wages and similar forms of compensation which one receives
in return for services rendered.      Lost past earnings, as used in the statute, denote
compensation to which the victim, except for the injury, would have become entitled
after the injury but prior to the award of compensation.       The accrued sick leave to
which you refer represents earnings to which the victim had already become entitled
before the injury occurred, and which he used to avoid suffering a loss that otherwise
        constitute “past earnings” for compensation purposes. We therefore answer your
second question in the negative.

                                     SUMMARY

               Sick leave and vacation benefits which are available to an
           employee who is the victim of criminally injurious conduct are
           to ba taken into account by the Industrial Accident Board in
           determining whether the employee can recoup a pecuniary loss
           without suffering financial stress, regardless of whether they
           may technically be “wage continuation programs” within section




                                          p. 1237
Honorable Buck Florence   - Page Four    (NW-369)




            3(3w.      Used sick leave and vacation    benefits   are   not
            compensable under section 3(73@)(iih

                                          l%pYtnd*
                                           MARK      WHITE
                                           Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
AssistantAttorney General

APPROVED:
OPINION COMMlTTEE

Swan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Bruce Youngblood




                                        p. 1238
