                  Au-.        TXXASI 787ll

                         September 16, 1977



Honorable Charles Leklaistre          Opinion No. R- 1055
Chancellor, University of
  Texas System                        Re: Whether faculty members
Office of General Counsel             of the University of Texas
201 West 7th Street                   are entitled to payment for
Austin, Texas 78701                   sick leave on termination.
Dear Dr. LeMaistre:
     You have requested our opinion regarding whether faculty
members of the University of Texas are entitled to payment for
sick leave upon termination of employment. The General Appro-
priations Act for the 1975-77 biennium provides, in article V,
section 7(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 confine-
          ment 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 ill-
          ness shall notify his supervisor or cause
          him to be notified of that fact at the
          earliest practicable time.
            To be eligible for accumulated sick
          leave with pay during a continous 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




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Honorable Charles LeMaistre     - Page 2   (x-1055)


          showing the cause or nature of the ill-
          ness or some other written statement of
          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 applica-
          tion for sick leave and submit the same
          through proper channels to the appropri-
          ate approving authority for his consi-
          deration.
            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 autho-
          rized exceptions.
            The foregoing provision regarding sick
          leave shall not apply to State institu-
          tions of higher education which had es-
          tablished rules in effect prior to the
          adoption of this Act for sick leave for
          the nonacademic and academic staffs of
          such institutions, and such sick leave
          policies may continue to be established
          by the governing boards of such institu-
          tions.
            A state employee who resigns, is dis-
          missed or separated from state employ-
          ment shall be entitled to be paid for
          one-half of sick leave entitlement duly
          accrued.
(Emphasis added). We note that the latter provision does not
appear in the General Appropriations Act for the 1977-79 biennium.




                              p. 4335
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    Honorable Charles LeMaistre     - Page 3   (H-1055)


         In AttorneysGeneral Opinion H-766 (1976) at 3, we held
    that the provision authorizing
              payment of . . . an employee's accumulated
              sick leave upon termination of employment
              is applicable to state institutions of
              higher education.
    We noted, however, that under the language of section 7(b), an
    institution of higher education which had established sick leave
    policies in effect prior to September 1, 1975,

              may continue to enforce those policies
              and to promulgate additional policies of
              a similar nature.
    Attorney General Opinion H-766 (1976)'at 4. You state that a
    number of the component institutions of the University of Texas
    System have for many years maintained a sick leave policy re-
    garding faculty members. During the period of a faculty member's
    illness, his teaching duties are assumed by another member of
    his department, but he continues to receive his regular salary.
    Records of sick leave accrued and used are not maintained, and
    sick leave accrual has not been recognized.
         If an institution is able to demonstrate that such policies
    were in effect prior to September 1, 1975, and that sick leave
    accrual by faculty members was not recognized prior to that
    time, we do not believe that the institution is required to
    compensate a separated employee for sick leave on termination.
    Whether such policies were indeed in effect is of course a
    question of fact, which may be demonstrated by the existence of
    written rules, statements in a faculty handbook, or otherwise.
                           SUMMARY

              If, under established policy prior to
              September 1, 1975, faculty members did
              not accrue sick leave, a university is
              not required to compensate a separated
              employee for sick leave on termination.
              Whether such policy was in effect is a
              question of fact.




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     Honorable Charles LeMaistre       -   Page   4    w-1055)




                                                      General of Texas
     APPROVED:


                         c*
                   LL,   First   Assistant


                         - -.
                 ATH, Chairma;
     Opinion Committee

I_
     jet




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