     OFFICE     OF   THE   AlTORNEY     GENERAL   OF   TEXAS
                               AUSTIN




Yonorable C. ki. Cavmeas
State Audlter
Awtln,   Texa8

Dear kr.   Carneser




              You propound f




                                         8 arlary in suoh
                                        am died during a


                                  answer to the above Abe
                                 peat  had been made from
                               ooal Funds rather than from


                        uld your answer to the above qu&~-
                       to a departaent head in the same
                      0 an ewiployee~~

             The liability   of the State for pawent of oompen-
cation to an employee Is predicated upon the conceptinn of
uut ua~ VgreeLent    of the parties -- the State md the em-
ployee t- for aervioe to be performed by the employee and
paybent t,tiercfor to be made by the State.     Thnre can be no
lIabllit$,on    the part al' &he State unless there has hem-
perforoledkhc     contemplated service by the eauplcqea. Com-
pensation    is an incident to the servioe and dependent upon.
it.
uunorablo   c; . u.   Laxness   -   page   2




            In the oaae ot the head oP a department, or any
other official,   the general rule oP liability    for oompen-
motion la net predio*tad upon an aotual performanoe 0P the
deyartltental or oPPioia1 dutiea, bat   oompenaatfon   la an in-
qldent to the ofPioe, and may be paid and &ren er@oroAd,
when in truth the aiiloer    doee not periorm the oPPiola1
duties 0P him 0PPioe.

                Thie diat%n~$ion  with reapecrt to anployeea and
0fPioera is 05 no importanoe, ho~wer,            In tha present in-
w-7.         Under no aonoeption Of llaBillty,        rhetbu   to an
employee or to,the bead eP a department or ether public
officer,      will the State be liable    where   the   employee hen
not   perfOr8Wd     h&S  SemkO86,  or the head OP the department
or titate oPPioia1, aa t,he aaa~e rnr be, ham died.            la the
oaae oP the employee the periomnoe             of his eontraatual
duties ceaaea upon h%a death, and therefore thre               la no
liability       to him eatate whataomer,     and in the oaae of
the death oP the head of a dapartaeut,           or othtw State ot-
ricer,      there la no turthor liability      oi the Stite to hie
eetate or legal repreaentatire,        beaauae he has ceased to
be an ofiioer       eP the Litate, and the prinofple       that ool-
pensation is an inofdent to the oPPioe ham no applioa-
tion, Por there la no oPPioia1 tenure or holding upon
rhioh to prodleate liabillt~.

          This Department held in Upinion go. o-Pg14 that
an employee of the state rhoae emplgment was terminated
by the order oP the umative     dlreator having authorfty
man not entitled  to ooaponeatlon bwoad the date af him
diecharge as a iaoatioa  allowanoe, in wh%oh opinion we
maid:

            *Prom the faata am met out in your let-
      ter, it la apparent that   Mr. garria    (the em-
      ploree)   maa not in the aployment oP the State
      between Yay 23, 1040, and June 9, lp40.        For
      thin reaaen, you are adrieed that     Yr. Iiarris
      sonnet be legally   paid for the period betrem
      Say 23 and 3uae 3, 1940.9

           So, alro, in Opinion Ye. o-ID04 ma reaffirmed
that holding in the Pollowing language,

           *An hour letter  eP inquiry of date kiaroh
      30, ~@&a, ypru d.ate that br. k&egg, an employee
uonorable L. A. Cavness - page 8




         of the Texas Liquor Control Board at the
         time of his death tam antftlad to the
   _     statutory raoatlon period, and inquire
         whether or not his estate mar nor be ptid
         the salary whioh Ur. Ilogg would hare dram
         during such raoation period but for his
         death.

              "Your queation must be lna wexedIn the
         negative.   The atatute contemplatea *at    em-
         ployees of the Btate may hare the deil~ated
         period of raoation upon tull pay.    T&is
         aieana, neceaaari1y, that the status .sP the
         employee must hare existed during the so-
         called vaoation period.     Yhwa one diem, or
         otherwise Oeaaea to be an eaployee of the
         Ptate, hia stataa am emplofeo,   of oourae,
         is at an end, and, therefore, the inoident-
         al right to a raoation upon full pay am an
         eraplgeehaa   oeaaed.*

          Front what we hare add it foll~ora that your
questions should be marered oategorioally  as follows:

          (1) The Lltate'a liability oeaaea      upon   the
death ot the employee.

          (2) Qur answer to (1) I.8not 8PPected by the
source ot the public Punda Prom vhich the employee wee
pa&d.

           (3) Our anawera to (1) and (2) would be the
same    above given, rhere the deceased servant
         aa                                      was the
bead of a department or other public offiolal, am contra-
distinguished Prom an employee ot the State.


                                 Very truly your0




                                              Oole .i.+p#r
                                               Aaaistant

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