                                        October 12, 1973


   Honorable Rbb&t~S.         ~Caiv&t               ~Op@ibn No. H-126
  Comptroller   of Public       Accountr
  State of Taxae.:                                  Re:    WI-+&her Houec Bill 139.
  Atietin. ‘78774 ’                                         63rd Leg.,  authbrisei
                                                           “payment of acciued vaca-
                                                           tion pay to an employee
                                                           who reparatee   or ie
                                                            leparkted from ltate
  Dear   Mr:     C’veit:~~                                 ,&mployment

         You~have reqdirted    our &pinion tion&nizig   the iighte of employee8
  separated   from, state. em@loyment to b@ paid for accrued vacation time,
  under House Bill 139, ofithe 63rd Legialature,      The General Appropriations
  Act for fiecal~yeare   ~1974and 1975.

          Your    mpecifi’c question    aeke:

                         “Can thi~e department legally pay’ dn.itiployee
                  for vacation time duly accrued on the date he aepar-
                  ater from State employment for any unured vacation
                  &titlement   undei’*e   .current Appropriation   Bill?”

          Exc’~~~‘f~r’iirticle;‘bZSi-8i.~ V.T. C. S., which appiie.e to’vication
   ti&   ac&uxi&itad at tl&+at~‘of      a ‘et&e employde.   there ii nongeneral law
  .provLdicg fi$$ $?+~.ohtim~   ~foi all state employeer.   Article ‘6252-8. V.T.CS,
   givee to hotirly etiplo$eer,  continuously emiloytid’by     the State for 6 months
   or more, whatever Mcition      rights may be granted to konthly employees.

          Whatever’vacatioti iighte do exiet arc,found’in    Article  V of the various
   appropriation   acts.   Prior to fircal 1973, there wae no authority for an em-
   ployee to be paid a lump rum for accrued vacation bti the termination d hie
“’ employment,     and it wao l uggeeted in Attorney~General    Opinion M-1075 that
   "all reeignation#,dirmierale     o rleparatione from State employment murt be
The Honorable    Robert   S. Calvert,    page 2,(H-126)




accomplirhed   effective on a date which will     permit   the employee   to be :
paid for hir accumulated   vacation. It

      Although   that opinion and Attorney General Opinion No. 1252 (1972)
as well, apeak of the right to accrued vacation time as @kernted, ” we do
not believe it ie vemtkd in the urual sense of that word. Rather, we are
of the opinion that the right to accrued vacation time ia analogour   to the
right to retirement   benefit@ under one of the several plans authorized   by
the various legirlaturea.     Am to theme, the Supreme Court bar raid:

                   “In our opinion, the rule that the right of a
            penrioner to receive monthly payment0 from the
            peaiion fund after retirement     from service,     or
            after his right to participate   in the fund ha8 accrued,
            ir predicated   upon the anticipated    corLinuance of
            existing lawn, and ie auborainate      to the right of the
            Legirlkure    to abolish the pension eyetern, or dimi-
            nish the accrued benefitr of pensioner6       theretinder.
            1~ undoubtedly    the mound rule to be adopted.    ”

City of Dallaa v. Trammell,      101 S. W. 2d 1009, 1013(Tex.   1937); and see
Board of Managers of Harris      County Hoop. Dief:.v~.Penaicin:Board.     449
S. W. td 33 (Tex. 1970).

       The ,right# of an employee to .be paid for accrued vacation’:timc    must
depend, therefore, upon the state of the law at the time of hia eeparation
from state employment.        Aa to permom who die while employed by the
State, the right* of their eatat& are determined~by      Article  6252-8a, V.T.CS
On the other hand, except insofar aa Article      6813b, V. T. C. S., makes the
salary prov$aions of the bieonial appropriationa     acta the general law, there
im no over-all   rtatute~providing  for vacation time for living employees.

      In the Appropriation  Acefor  fiscrl’l972 (Senate Bill II, Regular Ses-
sion, 62nd Legimlature),  it was provided in Article   V, 0 7 (p. V-35) that,
“No employee of the State shall.be granted terminal annual or vacation
leave subsequent to the effective day of the employee’s   resignation,  dis-
missal,  or separation from State employment. I’ Attorney Gemrrl Opinion




                                        p. 610
       The Honorable     Robert   S. Calvert,    page 3 (H-126)




       M-1075 (1972),found this language to be unambiguous     and luggented,   as
       we have quoted above, ‘that the effective date of the termination   be post-
       poned until a time sufficient to include the accruid  vacation.

                 The Approprtation     Act for fiscal 1973 (Senate Bill~~l,~ 3rd ‘Called
         Seseioa,   62nd Legislature),     provided in $ 7,,~at p. ,V-34, “A State em-
        ~@lbyee who resigni,’ his’dirmiraed,       or separrtes   fro& State employment
         shall be entitled to be paid for ill vacition time duly accrued. I’ (imphasis
         added)    This proviiion  wan the rubject of Attorney General Opinions
         M-1252,    M-1279, M-1280, M-12@ (1972). . Opinion ‘1252~held that because
         of the language.   “shall be entitle’d fo~~be paid, ‘I a State einployec who was
         separated   and had nbt been.Zully paid~ for all vacation time to whiclitie
_~   .,
        .was entitled, had tiot been fully paid’for ~a11iervices       ,rendered land was
         entitled to reCeive :any balance due him’tipdn~termination         af his employment.

             The 63rd Legislature,       in~the Genera       Appropriations  Act for fiscal
      1974 and 1975, again rewrote        5 7 of Article V and the pertinent language
      with Eeference to accrued vacation timg             is now. “A States employee who
      rcsigne,   is dis&&sid.     or scpa+Btdd from Sta%C.employment          shall be en-
                                                       ,.
      titled to all vacation time duly.ticcrued. ” There is n6 provision           there or
      eleewhere    in the Abpropriatibn      Act tir’thc penerrl’stitutes   of the State that
      an employee.     upon l eparation,     shall ‘be paid for ,a’ccrued time.

             In construing thC”imgtiie     of Article V. 5 7. we are not at liberty
      to arsume that the worde “to be paid” were omitted through inadvertance.
      To the iontiary.,    we must astnune that they were ititentionally omitted
      and that something in the history of the application    of the 1973 Act caueed
      tbe Legidatur~     to change -its mind.

             It is the general rule that your office may not iraue warrants for an
      item for which there has been no appropriation.       National,Bircuit   Co. v.
      Sclte, 135 S. W. 2d 687 (Tex. 1940); State v. Angelins     County. 150 S. W. td
      379 (Tex.    1941); Bullock v. Calvert,  480 S. W. 2d 367 (Tex.    1972). This is
      true even though an expenditure,;,may be exprer~sly:called     for by a general
      law.   See, for imtance.    Attorney General Opinion C-579 (1966) hblding tht,
      even though the general law provided for fees for certain witnesses,        ln the’
      absence of an appropriation     for thoee feea, they could not be paid.




                                                p. 611


                                         s           .
The Honorible    Robert   S. Calvert,        page 4 (H-126)




       Am we construe the current wording of 5 7, it now provides that an
employwe is entitled to ?ime, ” not to pay, and, in any event, no funds
are appropriated  to pay a petson who is-no longer an employee for accrued
vacation time.

        We are of the opinion, therefore. that the office of the Comptroller      of
Public Accounts (except in camemof death) may not legally pay an employee,
under the current Appropriations      Act. for unused vacation time duly accrued
on the date he separates from’state     employment.       Apparently the Legisla-
ture intended that vacation time be used for vacations,        and’not to supplement
income.      The change in the ‘law, as we interpret    it, should encourage   emplby-
ees to take their vacations ‘aa they accrue.     If that ,ic.hot pfictic*l.  sqwwd0n
ihpul&be effective :b~Cr dit&‘,whicb,wiU psrxtiit tht e+ploy.e:e tb,Tm~rirf hts :“;
ic&iiiulated    vacation. time prior to him separation.

                                  SUMMARY

                     There’im neither any general law nor any appro-
             priationin    the Approprtrtion Act for 1974-1975 autho-
             rizing the payment of money to a state employee who
             iemigns,   is dimmiased or otherwise   separates from
             State employment (except in casem’of death) in lieu of
             accrued but ynusecj vacation time.




‘APPROV$D:




DAVID M. KENDALL,         Chairman
Opinion Committee




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