                THE       ATTOICNEY    GENERAL
                              OF TEXAS
                           AUI3TIN.
                                  -rExAl           78711



                                 July 22,   1974


The Honorable J. W. Edgar                             Opinion   No.   H- 352
Commissioner    of Education
Texas Education Agency                                Re: Relationship    of sick leave
201 East Eleventh Street                              and leave of absence in Sections
Austin,  Texas  78701                                 13.904,   13. 905, Texas Education
                                                      Code, and length of leave of
                                                      absence..

Dear   Dr.   Edgar:

        You have requested ‘our opinion on questions concerning                sick leave,
and leave  of absence for temporary   disability under the Texas               Education
Code.

        The Education Code, Vernon’s        Texas Civil Statutes,  in Sec. 13.904
provides a state-financed     sick leave for teachers  regularly  employed in
the public schools.    Benefits accrue at the rate of five days per year of
employment.    Local districts    are authorized to provide additional sick
leave beyond this minimum.

          In 1973 the Legislature~added    Sec. 13; 905 to the Code (Acts 1973,
63rd Leg.,     Rt W.,  ch. 470, p. 1276).    It requires     that a certified full time
employee     of a school district be given a leave of absence for temporary
disability   “at any time the employee’s     condition interferes       with the per-
formance     of regular duties, ” including,    specifically,     the “condition of
pregnancy. ‘I. During such a leave of absenc.e the contract of employment
of the employee may not be terminated         by the school district. .The Section
provides for reinstatement       rights.  In Subsection     (f) it authorizes   a
governing board of a school district to establish a maximum               length for
such a leave “but in no event shall that maximum be set at less than
180 days. ”



                                            p. 1639
The Honorable        J. W.   Edgar         page 2    (H-352)




           Your   first   question   is:

                   .Upon the granting of a request for a leave of
                    absence for temporary     disability to a person
                    eligible under the policy,   must the school
                    district pay earned accumulated      sick leave--
                    state and/or local sickleave?

           Correspondence       accompanying   your request indicates that the
question    is particularly     concerne~d with leave necessitated  by maternity.

         While Sets.  13.904 and 13.905 of the Education Code are closety
related,  the two leaves, are different and each must be determined    by its
own terme. Sick leave in Sec. 13.904 is primarily       concerned with pay
for time off from work because of sickness.      Section 13.905 deals with
protection of ~tenure and the right to return to active employment    during
a more extended period of disability.

          While the circumstances    making one section applicable could also
make the other applicable,     there may be distincttons  between “sickness”
or “illness”    as those terms are used in Sec. 13.904 and “temporary
disability”   as used in Sec. 13. 905.  For example,   Sec. 13.904 sick leave
expressly    includes absence because of death in the immediate    family,
while a Sec. 13,905 leave for temporary     disability does not.

        The answer to your first question therefore is that, in our opinion,
whether or not sick leave benefits should be.paid under Sec. 13. 904 will
depend upon applicable rules and regulations     and the facts of each case,
without reference  to the teacher’s eligibility for a leave of absence under
Sec. 13.905.

         As your qu’estion is particularly    concerned with absence because
of pregnancy,     it should be pointed out that in our opinion, ,no distinction
may be made between absence because. of pregnancy and other types of
illness,   sickness   or disability, and a teacher absent because of preg,nancy
is entitled to exhaust’her     accumulated  sick pay, both state and local.



                                                    p. 1640
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    The Honorable     .I. W.   Edgar    page 3 (H-352)




    See our discussion  in Attorney General Opinion No. ,H-251 (1974), involving
    questions with reference   to the rights to accrued vacation and sick leave
    of a female state employee whose employment        terminates because of
    pregnancy..    There we said:

                            The answer . . . is simply that pregnancy and
                       childbirth may not be treated as different from any
                       other sort of temporary   disability. A pregnant woman,
                      ,upon taking leave of absence to have her child, should
                       be allowed to exhaust her vacation time and sick
                       leave . . . .

            We do not believe that the recent decision of the United States
    Supreme Court in Geduldig v. Aiello,       -     U.S. _,    ,42U.S.   L.W.
    4905 (1974), affects the applicability    of the federal statutory requirements
    and the administrative    interpretations    upon which that opinion was based.
    There,   the Court held that ,the United~ States Consitution does not prohibit
    the exclusion of pregnancy      from coverage under a state unemployment
    compensation    disability fund.   Thus, the right of a pregnant      teacher to
    sick pay benefits may not be of federal constitutional       dimensions.

            In your   second    question,   you ask:

                      In Subsection (fl of Section 13.905 which prescribes
                      that in no event shall a maxitium   (leave of absence)
                      be set ‘less than 180 days, ’ does 180 days as used
                      therein mean calendar or work days?

            Subsection    (f) of Sec.   13.905   provides:

                           (f) The length of a leave of absence for temporary
                      disability  shall be granted by the superintendent   as
                      required by the individual employee.     The, governing
                      board of a school district may establish a maximum
                      length for a leave of absence for temporary     disability,
                      but in no event shall that maximum be set at less than
                      180 days.



                                                 p. 1641
                                                     .



The Honorable       J. W.   Edgar   page 4 (H-352)




        A period of six months often is referred    to as 180 days.  On the
other hand, 180 days has special meaning in the Education Code, since
the Foundation School Program    of Chapter 16 calls for 180 days for the
school term.   See Sec. 16.310,  V. T. Education Code.      However,  this
Section also provides tha a full school-year’s   service for a teacher is
190 working days.

         Although a plausable argument can be made ~that “180 days” means
180 working days in the context used here, our examination          of the legis-
lative history of the Act, together with the often repeated admonition that,
generally,   words in statute.sare    to be given their ordinary meaning,
persuades    us that the provision refers to calendar days.      Attorney General
Opinion WW-1204      (1961); Art. 10, Vi T. C. S. ; 53 Tex. Jur,. Zd, Statutes
$148,   p.   215.

         Thus, in our opinion, the governing board of a school district may
establish a maximum length for a leave of absence of not less than 180
calendar days.

                                      SUMMARY

                         A teacher’s  entitlement   to state and local sick
                    leave under Sec. 13.904,      Texas Education Code,
                    depends upon the applicable      rules and regulations
                    arid~is unaffected by any concurrent     eligibility for
                    a leave of absence under Sec. 13.905,        Texas Edu-
                    cation Code.

                         The maximum     leave of absence for temporary
                    disability  under Sec. 13.905,   V. T. Education Code
                    t-nay not be set at less than 180 calendar days.




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            The Honorable   J. W.   Edgar   page 5   (H-352)




                                               -
            Opinion   Committee


            lg




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