                                     September    17, 1973


The Honorable Hugh C. Yantis,    Jr.                Opinion No.   H- 105
Executive Director
Texas Water Quality Board                           Re:      What is the meaning
P. 0. Box 13246, Capitol Station                             of the term “total
Austin,  Texas 78711                                         continuous service”
                                                             as used in House Bill
                                                             139, General Appro-
                                                             priations Act, 63rd,
Dear   Mr.   Yantis:                                         Legislature?

      The General Appropriation   Bill for the 1974-1975 fiscal      years (House
Bill No. 139, 63rd Legislature)  contains,  as §a(l) of Article      V “Salary
Rates for Classified Positions, I’the following provision:

                     “An employee    who is c,lassified in Salary Groups
             2 through 7 inclusive   on the effective date of this Act who
             has either five (5) years or more total continuous service
             with the State of Texas as of September      1, 1973, or will
             complete five (5) years total continuous service with the
             State of Texas during the fiscal year September        1, 1973
             to August 31. 1974, will be awarded a one-step       increment
             increase   on September   1, ,1973. or on the day he completes
             five (5) years service  during fiscal 1974, but not to exceed
             Step 8 of the Salary Group in which such employee is serv-
             ing . . . . ” (emphasis  added)

       You note that several   employees   of your agency have worked continuously
for the State for five or more years.     However,   they have not had five years
continuous service    “during the past five years (1968 to 1973). ” You ask whether
they are entitled to the longevity raise.

       Your request concerns the eligibility      of a person whose five years of
“continuous service”  may have terminated         sometime   in the past but who since




                                       p.   490
The Honorable       Hugh C.     Yantis,    Jr.,   page 2      (H-105)




has resumed State employment.     We have also-been      asked by a number                        of
other State agencies to determine  the eligibility ‘of those who, though
employed more than five years ago, during the period of their service,
have had some interruption   such as a prolonged illness,     etc.

      Article     3,   5 44 of the Constitution         provides:
                                                                                     .
                         “The Legislature     shall provide by law for the             ‘,
                                                                                                       t.1:
                compensation      of all officersi    servants,    agents and..    ,, ‘I.
                public contractors,      not provided for in this Cons&u-.’              ‘/ .?’
                tion, but shall not grant extra compensation             to any
                officer,    agent, servant,     or public contractors,       after
                such public service      shall have been performed          or
                contract entered into for the performance             of the same;
                nor grant, by appropriation          or otherwise,    any amount
                of money out of the T~reasury of the State, to any indi-.-
                vidual, on a claim,      real or pretended,      when the same
                shall not have been provided for by pre-existing              law;
                nor employ anyone in the name of the State, unless
                authorized     by pre-existing     law. ”

       In accordance    with the constitutional  mandate,    the Legislature has
enacted Article    6813b, most recently amended in 1965 (Acts 1965. 59th Leg.,
ch. 46, p. 118), which provides     that all salaries  of all State officers and
employees    shall be determined    by the Legislature   in the biennial appropria-
tions act.

       Although the Position Classification   Act of 1961 (Article 6252-11, V.T.C.S.)
provides that the salaries  of all full-time salaried employees    not specifically
excepted from its coverage    shall be in accordance   with the Position Classifi-
cation Plan, we see no problem with the longevity provisions   of House Bill 139
since they merely provide for the classification of certain employees  within
the Plan, not outside of it.

       Although not involving the Position Classification Act, Attorney General
Opinion WW-1152 (1961) did involve the validity of a provision in the General
Appropriation   Bill prescribing a schedule of increased  compensationfor    em-
ployees of the State Highway Department    based upon the total length of service




                                             p.   491
    ,   .

:




            The Honorable    Hugh C.   Yantis,   Jr.,   page 3   (H-105)




            within the Department.     In that opinion, this office found the provision to
            be valid and not in violation either of $44 of Article    3, of 5 51 of Article 3
            or of 5 6 of Article 16 of the Constitution.

                    The power of the Legislature    to prescribe    salaries   under 544 of
            Article    3 is broad and, in determining   the constitutionality    of any statute
            enacted under it. every possible presumption         obtains in favor of constitu-
            tionality.     Commissioners   Court of Lubbock County v. Martin,         471 S. W. 2d
            100 (Tex. Civ. App. , Amarillo,    1971, err. ref’d,    n. r. e.).

                   We are of the opinion, therefore,    that so much of House Bill 139 as
            provides for additional compensation     to State employees   having five years
            or more of “continuous   service”  is valid and constitutional.

                   In determining   what is meant by “continuous     service, ” we are charged
            by Article   10, V. T. C. S. , with applying to words their ordinary “signification. ”
            At the same time we are charged by the same statute to “look diligently for
            the intention of the Legislature,     keeping in view at all times the old law, the
            evil and the remedy. ”

                    “Continuous”  is defined as being synonymous with “uninterrupted.         ”
            Literally,   it means something which takes place in unbroken sequence..

                     Were we to give to it a strict and literal meaning,     we would be compelled
            to hold that “continuxls service” as used in House Bill 139 requires uninterrupted
            service    by an employee    or officer of the State.  Significantly,  also, the Legis-
            lature    used the word “service”     and not “employment.    ” Giving to “service”   its
            literal,   dictionary   meaning, it, too, would restrict   the longevity benefits to
            employees      who actually served the State.     Those who remained in its employ
            but, for instance,     were on vacation (certainly not “serving”1     would interrupt
            their service and would not “continuously        serve” the State.

                   However,    to adopt such an interpretation would, in our opinion, defeat
            the intention of the Legislature   which we construe to have been to encourage
            employees    to remain in the employ of the State and to reward those who do.

                   We believe that in determining the intention of the Legislature  in adopting
            the language used, we should give to it a fair and sensible construction    to carry




                                                   p.   492
                                                                                 .    -




The Honorable    Hugh C.   Yantis,   Jr.,    page 4    (H-105)




out  its purpose and not one which would nullify or defeat the legislative
intent.   Certainly we should not adopt a construction   which would lead
to an absurd conclusion.     Railroad Commission    V. St, Louis Southwestern
Railway Co.,     443 S. W. 2d 71 (Tex.Civ.App.,  Austin,   1969, err. ref’d,
n.r.e.).

       There is valid authority     to support our conclusion   that “continuously”
should not be given its literal    interpretation.    Germania Farm Mutual Aid
Association  v. Anderson,    463    S. W. 2d 24 (Tex. Civ.App.,    Waco,   1971, no
writ) was a suit brought upon      a policy of fire insurance which provided there
was no coverage   if the premises   were vacant and defined vacancy as a condi-
tion when there was no person ‘living on the immediate    premises  continuously
. . . . ” (emphasis   added). Citing from 4A  Appleman.   Insurance  (1969). 5 2834,
the court said:

                    ” ‘Continuously’ as used in connection with a
             vacancy clause is held to authorize      ‘more than one
             period of unoccupancy    to exist, ’ and ‘does not imply
             that someone shall remain in the building all of the
             time without interruption.   ’ I’ (463 S. W. 2d at 25)

       “Adverse   possession”     as used in statutes of limitation with reference
to real property is defined by Article       5515, V. T. C.S.,   as being “an actual
and visible appropriation     of the land, commenced      and continued, ” under a
claim of right inconsistent     with and hostile to the claim of another.       It has
been construed to require that the possession         be “continuous.   ” Holstein v.
Adams,    10 S. W. 560 (Tex.    1889); Boone v. City of Stephenville,      37 S. W. 2d
842 (Tex. Civ. App.,    1931, no writ); 2 Tex. Jur. 2d, “Adverse       Possession”
5 70, p. 145, et seq.    However,     temporary   absences which are not unreason-
able under the surrounding      facts and circumstances,      do not prevent the occu-
pancy from being considered        continuous and uninterrupted.      Hankamer v.
Sumrall,   257 S. W. 2d 827 (Tex. Civ.App.,        Beaumont,    1953, err. ref’d,nr.e);
2 Tex. Jur. 2d Adverse     Possession,     5 72, p. 149, et seq.

       The law of easements     requires     that,   to establish   an implied   easement,
use  must be “continuous.  ” This has been held satisfied  by the necessarily
intermittent use of a driveway by the occupants of a house and their guests.
Bickler v. Bickler.   403 S. W. 2d 354 (Tex. 1966).      .




                                      p.    493
    .   .


I




            The Honorable      Hugh C.   Yantis,   Jr.,   page 5 (H-105)




                   Decisions   in other jurisdictions     may be of interest.     In Kennedy v.
            Westinghouse     Electric. Corp.,    108 A. 2d 409 (N. J. 19541, suit was brought
            to recover holiday pay for a holiday to which employees            were entitled if
            they had “completed       three months continuous service”      prior to the date of
            the holiday.    During the three month period. the employees           had voluntarily
            entered into a work      slow-down.    The   New  Jersey court    decided   against the
            employees    because the service rendered was not the service            contemplated
            in the agreement.      Nevertheless,     it said:

                                  “We may conclude that ‘continuous’ service          does
                          not contemplate     the performance      of labor during every
                          scheduled shift hour of every work day.           In the very
                          nature of things ‘there is really no such thing as contin-
                          uous labor.     Holidays,    sicknesses,    recreation   periods,
                          week-ends,     all are breaks in the continuity of one’s
                          occupation,    but would not necessarily       destroy its con-
                          tinuity. ‘United States v. Perry, 55 F. 2d 819, 821 (8 Cir . ,
                          19121. Paragraph       (d) is to be read, we think, as imply-
                          ing no more than that breaks of service for personal            or
                          other reasons which would appeal to reasonable            men to
                          be excusable     in the particular   circumstances     shown will
                          not destroy continuity of service.         We are dealing here,
                          however,    with a concerted and deliberate refusal of
                          employees     to complete their scheduled shifts.       . . .‘I
                           (108 A. 2d at 415-416)

                   The court declined to decide whether excused absences or absences
            due to causes beyond the control of the employee would break the record of
            continuous service.

                   The dictum of the Kennedy case is supported by other decisions:        Garnski
            v. Metropolitan   Life Insurance Co.,   287 N. W.  731 (Wis.  1939)  holding  that for
            the purpose of disability insurance,   the requirement   of continuous employment
            for two full years was satisfied despite the fact that the employee     had been laid
            off for six months because of a reduction in work force; U.S.       v. Fitzpatrick.
            62 F. 2d 562 (10th Cir. 1933) holding that “continuous employment”        meant
            working with reasonable    regularity and was not destroyed by interruptions        due




                                                     p.   494
The Honorable    Hugh C.   Yantis,   Jr.,   page 6   (H-105)




to periods of ‘temporary illness; State ex rel Mulrine v. Dorsey,     272 A. 2d
709 (Del. 1970) affirming an administrative   ruling that “continuous   service”
as used with reference to a pension act did not preclude excused interrup-
tions in service  of less than one year.

       On the other hand,’ “continuous”     has been construed by Texas courts.
For example,    Article 1269m.    Vernon’s    Texas Civil Statutes,    requires   that
promotional   examinations   be open to policemen ,and firemen “who have held
a continuous position for two (2) years or more in the classification          . . .”
and that “No person shall be eligible for promotion unless he has served in
such Department for at least two (2) years immediately          preceding the day of
such promotional    examination.    . . . ” In City of Houston v. Landrum,         448
S. W. 2d 816 (Tex. Civ. App.,    Houston,    1970. err. ref’d.,   n. r.e.).  it was
held that Landrum was ineligible      for an examination where there had been
a lapse of some five months in his “continuous service”         during the two years
preceding   the examination   although he had been employed as a fireman off
and on for some twenty years.        And see City of San Antonio v. Pinchbank,
489 S. W. 2d 451 (Tex. Civ.App.,      San Antonio,   1972, no writ hist.).

        In Wolfe v. State, 75 S. W. 2d 677 (Tex. Crim.      1934), the penal provision,
aimed at marathon dance contests,       prohibited contests involving “any one con-
tinuous, competitive     period of endurance” exceeding 24 hours.        Where the
evidence showed that the contestants     were required to rest 15 minutes of every
hour, the court, citing the dictionary    definition of “continuous”    as being “with-
out break, cessation or interruption”     etc.,   held that the evidence failed to
establish   the prohibited “continuous,   competitive   period. ”

        In Crane V. Bankers Life and Casualty      Company,   281 S. W. 2d 117 (Tex.
Civ. App.,    Eastland,  1955, no writ hist.),  suit was an a policy of hospitalization
insurance    which provided that the company would not be liable for benefits for
more than 120 days “for any one - continuous period of sickness.”           The evidence
showed that the plaintiff had been hospitalized     for 120 days, being released on
August    20th and that he returned to the hospital on November      16th. suffering
from basically     the same condition,   Adopting a rather technical definition of
 “sickness,   ” the court held that there was not “one continuous period of sickness”
within the meaning of the policy.




                                       p.   495
The Honorable    Hugh C.    Yantis,   Jr.,   page 7   (H-105)




             “It is conclusively   shown that there was a break,
             a cessation,   an interruption,  in the type, or degree
             of sickness insured against and for which appellee
             agreed to pay the expenses.”     (281 S. W. 2d at 120)

       House Bill 139 recognizes      and provides for vacations,       sick leave,
emergency    leave, a leave of absence with full pay for those called to
active duty with the National Guard and others.            We are advised that
various agencies     likewise provide for leaves without pay under certain
circumstances.       Were we to adopt a strict and literal interpretation        of
“continuous    service”   it would be difficult to apply the law in a manner
consistent  with the legislative    intent.   Instead, we feel that, as stated by
the New Jersey court in the Kennedy case,           supra,   “continuous service”
does not contemplate      the performance     of labor every day of every week
for five consecutive     years.   Rather,   it requires five years of service
unbroken by any unauthorized        or unreasonable    abse,nces.    Holidays,   days
on sick leave,    week-ends,    emergency      leaves and other approved leaves,
with or without pay, do not break the continuity of service.

       Whether or not and under what circumstances        absences will be
approved or will affect the continuity of service are matters for deter-
mination either by specific legislation   or by those to whom the Legislature
has delegated the responsibility   of establishing employment     policies.  We,
certainly,   cannot prescribe  what they shall be.   We do believe,    however,
that whatever policies are established,    they must be enforced uniformly and
equitably among the employees     of any employing agency to meet the require-
ments of the Fourteenth Amendment       to the Constitution of the United States
that citizens be accorded equal protection of the law.

       With reference    to your  precise question,   we answer that. since the
appropriations    act does not require that the continuous service be completed
immediately    prior to the eligibility  for longevity pay or that the service,
once established,    continue until such time, it is our opinion that an employee
having five years continuous service at any time, whether subsequently
interrupted   prior to the fiscal year in question or not, is entitled to the long-
evity pay.




                                        p.   496
.   .




         The Honorable   Hugh C.   Yantis,   page 8   (H-105)




                                       SUMMARY

                           Holidays,    vacations,   approved sick leave, other
                    approved leaves of absence,with       or without pay, do not
                    break the continuity of one’s service       so as to preclude
                    five years “continuous      service”  necessary   to entitle a
                    state employee     to receive longevity pay.     The five years
                    may be completed at any time prior to the fiscal year in
                    question and once completed entitle the employee          to the
                    longevity pay despite the fact that, subsequent       to the
                    completion,    there may have been an unauthorized         inter-
                     ruption.

                                                      >ry       truly   yours,




                                                              L. HILL
                                                       Attorney General          of Texas




        DAVID M. KENDALL.       Chairman
        Opinion Committee




                                             p. 497
