Honorable Robert S. Calvert       Opinion No. M-1252
Comptroller of Public Accounts
State Finance Building            Re:   Must a State employee who
Austin, Texas 78701                     resigns, is dismissed, or
                                        is separated from State
                                        employment be paid for all
                                        duly accrued vacation time,
Dear Mr. Calvert:                       and related questions.

          Your request for an opinion reads as follows:

          "I hereby request your official opinion in
     answer to the following questions:

          "1 . Must a State employee who resigns, is
     dismissed, or separated from State employment be
     paid for all duly accrued vacation time?

          "a. If the above answer is in the affirma-
     tive, when should the payment be made?

          "2. Must the salary of a line-item employee
     be paid solely from a line-item appropriation or
     may he be paid in whole or in part from monies
     which the Legislature has prohibited in whole or
     in part to be paid for salary or wages?

             "a. Sec. 10. LIMITATIONS ON USE OP OTHER
     EXPENSE FUNDS FOR PAYING SALARIES AND WAGES. Funds
     appropriated in Articles I, II, and III of this
     Act, or for the Central Education Agency in Article
     IV of this Act, in items designated for consumable
     supplies and materials, current and recurring
     operating expense or capital outlay shall be ex-
     pended only for items set out in the Comptroller's
     Manual of Accounts, Expenditure Classification,
     effective Xovember 1, 1965, as amended, and num-
     bered from i0 CO 19 for 'consumable su;?lies and
     Lmater;dlS,' 2C rl?zoug!:25 for 'currerit and recurring
     operating   expense,' and 60 to 69 for 'capital


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    Hon. Robert S. Calvert, page 2              '(M-1252)


              outlay,'   It is further provided that such terms
              shall not include expenditures for personal
              services including salaries and wages, unless
              the language of those items explicitly authorizen
              such use."

                   Article   6252-8a, Vernon's Civil Statutes, provides in
    part:

                    "Sec. 2. Upon the death of a state employee,
              the state shall pay his estate for ali of the em-
              ployee's accumulated vacation leave and for one-
              half of his accumulated sick leave. The payment
              shall be calculated at the rate of compensation
              being  paid the employee at the time of his death.

                   "Sec. 3. Funds appropriated for salaries to
              the department or agency for which the employee
              worked shall be used in making payments provided
              for by this Act.”

                    Section 7 of Article V of the current General Appropriation
        Act   provides in part at page V-34:

                    "If a State employee transfers directly from
               one State agency to another, he shall be entitled
               to credit with the newly employing agency for
               his accumulated but unused vacation entitlement,
               provided that his employment with the State i8
               uninterrupted.  A State employee who remions&
               is dismissed, or separate6 from State employment
               shall be entitled to be paid for all vacation
               time duly accrued."   (Rmphasie added.)

                  The underlined portion of the above quoted rider did not
        appear in the General Appropriation Act beginning September 1,
        1971; instead it was provided:

                    "If a State employee transfers directly from
               one State agency to another, he shall be entitled
               to credit with the newly employing agency for his
               accumulated but unused vacation entitlement, pro-
               vided that his employment with the State is un-
               interrupted.   NC empioyee of the State shall be
               craritec term;nal annsal or vacation leave sub-
               seauent to the effective day of the employee's


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Hon. Robert S. Calvert, page 3        (M-1252)



    resignation, dismissal, or separation from State
    employment."   (Emphasis added.)

          Accrued vacation entitlement is a vested right of State
employees and of their estates. Attorney General's Opinion M-1075
(1972) and authorities cited therein.

          It is now specifically provided that a State employee
who resigns, is dismissed or separates from State employment "shall
be entitled to be paid" for all vacation time duly accrued.   There-
fore it is our opinion that an individual who is no longer on a
State payroll has not been fully paid all the compensation for
services rendered the State that he is legally entitled to untii
such individual has been paid for all vacation time which has
accrued to such individual.

          In answer to your first question you are therefore ad-
vised that a State employee who resigns, is dismissed or separated
from State employment must be paid for all duly accrued vacation
time.  Such payment is due and payable on the date the State em-
ployee resigns, is dismissed, or is separated from State employment,
which should be submitted on the monthly payroll for the month
in which the separation will occur; i.e., employment terminated
midnight December 31st, payment is submitted on the December pay-
roll.

          Article 6813b, Vernon's Civil Statutes, provides in part:

          "From and after the effective date of this
     Act, all salaries of all State officers and State
     employees, including the salaries paid any in-
     dividual out of the General Revenue Fund, shall
     be in such sums or amounts as may be provided for
     by the Legislature in the biennial Appropriations
     Act.   . . ."

           Since payment for all duly accrued vacation time is payment
for services rendered, it is our opinion that such payment consti-
t'utes salaries within the meaning of Article 6813b. Therefore suck
payment may only be made from funds made available for expenditure
by the Legislature in the Appropriations Act for salaries; i.e.,
Attorney General    Department appropriation, payment for accrued va-
cz::cn for Assistant Attorney General, may be paid from Item 6 or .;t-
rczr,ey General 's Operating Fund of the current Appropriations Bill.
Er.zlo:,eesfor .whom line item appropriations are made may be paid f;r 6:
-,.-..l-- vacation time from other salary funds. You are accoi-+..~--
--.,--ii-e;                                                     vi; q-3 _,




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            lion.Robert S. Calvert, page 4        (M-1252)


            advised that such payment is subject to the limitation provided
            in Section 10 of Article V of the current General Appropriations
            Act relating to limitations on use of other expense funds for
            paying salaries and wages quoted in your request.

                                    SUMMARY
                      A State employee who resigns, is dismissed,
                 or separated from State employment must be paid
                 for all duly accrued vacation time and such pay-
                 ment may be made from any appropriated funds
                 available for the payment of salaries or wages.




                                                    ORD C. MARTIN
                                                        General of Texas

            Prepared by John Reeves
            Assistant Attorney General

            APPROVED:
            OPINION COMMITTEE

            Kerns Taylor, Chairman
            W. E. Allen, Co-Chairman
            Marvin Sentell
            James Quick
            Bob Gauss
            Bob Flowers

            SAMUEL D. MCDANIEL
            Staff Legal Assistant

            ALFRED WALKER
            Executive Assistant

            NOLA WHITE
            First Assistant




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