                     January16,1976


The Honorable Bevington Reed        Opinion No. H-766
Commissioner, Coordinating Board
Texas College h University System   Re: Whether Appropriation
P. 0. Box 12788                     Act provision concerning
Austin, Texas 78711                 payment for one-half
                                    accumulated sick leave
                                    upon termination of.
                                    employment is applicable
                                    to institutions of higher
                                    education.
Dear Commissioner Reed:
     You have requested our opinion on several questions
regarding the provision of the current General Appropriations
Act, Acts 1975, 64th Leg., ch. 743, p.2417, which for the
first time provides for payment of one-half of an employee's
accumulated sick leave upon termination of employment. The
General Appropriations Act, provides in article V, section
7(b) at pp. 2849-2850:

             b. Employees of the State shall,
          without deduction in salary, be entitled
          to sick leave subject to the following
          conditions:
             Sick leave entitlement shall be
          earned at the rate of eight (8) hours
          for each month or fraction of a month
          employment, and shall accumulate with
          the unused amount of such leave carried
          forward each month.
              Sick leave with pay may be taken
          when sickness, injury, or pregnancy
          and confinement prevent the employee's
          performance of duty or when a member
          of his immediate family is actually
          ill. An employee who must be absent
          from duty because of illness shall
          notify his supervisor or cause him to
          be notified of that fact at the earliest
          practicable time.

                          p. 3232

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    The Honorable Bevington Reed - page 2 W-.766)


                PC 38 eligible for accumula,;edsick
             leave with pay during a continuous
             period of more than three (3) working
             days, an employee absent due to illness
             shall send to the administrative head
             of his employing agency a doctor's
             certificate showing the cause or
             nature of the illness, or some other
             written statement of the facts concerning
             the illness which is acceptable to
             such administrative head.
                Upon return to duty after sick
             leave the employee concerned shall,
             without delay, complete the prescribed
             application for sick leave and submit
             the same through proper channels to
             the appropriate approving authority
             for his consideration.
                 Exceptions to the amount of sick
              leave an employee may take may be
              authorized by the administrative head
              or heads of any agency of the State
              provided such exceptions are authorized' '
              on an individual basis after a review
              of the merits of such particular case.
              A statement of any such authorized
              exceptions or the reasons for them
              shall be attached to the State agency's
              duplicate payroll voucher for the
              payroll period affected by such authorized
              exceptions.




                            p. 3233
The Honorable Bevington Reed - page 3   (H-766)




    Your   first   question asks:
           Is the rider provision in Fection 7(b)
           of Article V of the present General
           Appropriation Bill, authorizing payments
           to employees for accumulated sick leave,
           applicable to the institutions of higher
           education?
     The statute clearly requires that all state employees,
upon separation, be paid for one-half of their accrued sick
leave. No exception is created for employees of state
institutions of higher education. The exception in the
preceding paragraph applies only to "[tlhe foregoinq provision
regarding sick leave" and is not applicable to any subsequent
Drovision. It is well settled that, where the lansuase of a
statute ia plain and clear, it must.be given effecf ai
written.Thp&*Yr                 254 S.W. 2d 98 (Tex.Sup.
1952).                      usurp the function of the Legisla-
ture by reading into a statute a-provision which is not
contained therein. Goldman v. Torres, 341 S.W.Zd 154 (Tax.
Sup. 1960). It is therefore our opinion that the provision
of the General Appropriations Act providing for payment of
one-half of an employee's accumulated sick leave upon termi-
nation of employment is applicable to state institutions of
higher education.
     Your second question is:
           May the governing board of an institu-
           tion of higher education limit the maximum
           number of days of sick leave which can be
           accumlated by an employee for either pay-
           ment purposes in the case of termination
           or actual use in the case of illness?




                             p. 3234
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The Honorable Bevington Reed - page 4 (H-766)


     .>b &i-d ii1response to your firzi question, the Leqis-
lature has established a policy of payment for a portion of
unused sick leave. The language of the Appropriations Act
indicates that this policy applies to institutions of higher
education, even though these institutions have some flexibility
in establishing general sick leave policies. Thus, if an
institution of higher education had established sick leave
policies prior to September 1, 1975, it may continue to
enforce those policies and to promulgate additional policies
of a similar nature. These policies might include limitations
on the maximum amount of sick leave which can be accrued.
However, the institutions may not thwart the purpose of the
Act by establishing two different types of sick leave, such
as sick leave accrued for use in case of illness and sick
leave for payment purposes on termination of state employment.
     Your third and fourth questions ask:
          (3) Are employees of an institution
          of higher education who have been
          hired in connection with projects
          funded by grants or contracts and paid
          from the funds made available pursuant
          to such grant or contract entitled to
          be paid for accumulated sick leave
          even though the grant or contract does
          not allow or provide for such expenditure?
           (4) Are the institutions of higher
          education required to make payments
          for accumulated sick leave to employ-
          ees of the institutions' auxiliary
          enterprises who terminate employment?
     The provision'of the General Appropriations Act which
authorizes payment for one-half of accrued sick leave is
applicable to "state employees." Thus, if an individual is
a "state employee" he will be entitled to the benefits of
this portion of the Appropriations Act. Since the institu-
tions of higher education about which you inquire are agencies
of the State, their employees are state employees. Your
third question presupposes that the individuals whose salaries




                         p. 3235
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    The Honorable Bevington Reed - page 5 (H-766)


      _ ,-i: .nith :he proceeds of grant: or contracts are employees
    of the institution. As such they are entitled to the benefits
    of the Appropriations Act provision relating to payment for
    sick leave. Auxiliary enterprise employees are also employees
    of the institutions and are similarly entitled to the Act's
    benefits. -  See Attorney General Opinion H-456 (1974).
         With regard to your last question, where you ask us to
    suggest options available to the institutions of higher
    education if funds are not available for sick leave payments,
    we express no opinion. -See Attorney General Opinion H-211
    (1974).
                         SUMMARY
                   The provision of the General
              Appropriations Act providing for payment
              of one-half of an employees' accumulated
              sick leave upon termination of employment
              is applitable to state institutions of
              higher education. The governing boards
              of certain institutions may limit the
              maximum number of days of sick leave
              which an employee'may accumulate, but it
              may not draw a distinction between the
              accrual of sick leave for payment purposes
              in the event of separation and accrual
              for actual use in case of illness.
              Employees of institutions of higher
              education are state empl6yees entitled
              to the benefits of the sick leave
              payment provisions of the Appropriations
              Act.
                                   Very truly yours,



                                   Attorney General ,of Texas




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          The Honorable Bevington Reed - page 6 (H-766)




          Opmion   Committee
          jwb




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