                        The Attorney                    General of Texas
                                               December 1, 1980
MARK WHITE
Attorney General

                   Honorable James B. Adams                       Opinion No. m-282
                   Director
                   Texas Department of Public Safety              Re: Whether a retiring employee
                   5805 N. Lamar Boulevard                        is entitled to be paid longevity or
                   P. 0. Box 4087                                 hazardous duty pay in addition to
                   Austin, Texas 78773                            accumulated leave if he takes the
                                                                  accumulated leave in a lump sum

                   Dear Mr. Adams:

                          You have requested our opinion as to whether a retiring employee is
                   entitled to receive longevity or hazardous duty pay when he is compensated
                   for his accrued leave in a lump sum.

                         Article 6813d, V.T.C.S., provides, in pertinent          part:

                                 . . .each state employee. . . is entitled to longevity
                                 pay of a maximum,of $4 per month for each year of
                                 service as an employee of the state tp to and
                                 including 25 years of service.

                   Article   6252-20b,   V.T.C.S., states, in pertinent   part:

                                 All commissioned law enforcement personnel of the
                                 Department     of Public Safety.. . are entitled to
                                 hazardous duty pay of $5 a month for each year of
                                 service in the respective agency, up to and including
                                 30 years in service.

                   You indicate that it is possible for a retiring employee of the Department of
                   Public Safety to have accrued up to 336 hours vacation time for which ha is
                   entitled to be paid at the time of separation from employment. H.B. 558,
                   Acts 1979, 66th Leg., R.S., ch. 843, art. V, S7, at 2900-01. If the employee
                   were to remain cn the payroll while drawing 336 hours vacation time, he
                   would be entitled to be compensated for approximately          two months of
                   longevity pay or for a similar amount of hazardous duty pay if he is a
                   commissioned officer. If the employee had 30 years of service, the monthly
                   bonus would amount to $50. You ask whether a retiring employee who
                   collects his vacation time payment in a lump sum is entitled to receive
                   longevity or hazardous duty pay for a period equal to the amount of his
                   accrued vacation time.




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Honorable James B. Adams - Page Two        (Mw-282)




       Longevity pay is available to an individual only as an “employee of the state.”
Likewise, only “commissioned law enforcement personnel of the Department of Public
Safety” may receive hazardous duty pay. The clear implication of both statutes is that
a person must be on the state payroll during a particular period in order to qualify for
a payment based lpcn that period. In Attorney General Opinion H-1096 (1977), this
office said:

           It is well established that an employee’s unused vacation time
           &es not extend his term of employment, and that payment for
           accrued annual leave ‘has no significance in determining the
           date ‘of separation from employment. Funderburk v. Metropoli-
           tan Life Insurance Co., 146 So. 2d 710, 715 (La. Ct. App. 1962);
           Wyatt v. Security Benefit Life Insurance Co., 283 P. 2d 243, 246
           7Kan. 1955). Sea Mutual Life Insurance Co. of New York v.
           Presbyterian Hospital of Dallas, 503 S.W. 2d 870, 874 (Tex. Civ.
           App. -Dallas 1973, writ rePd n.r.e.).

        An employee must be separated from state employment to be eligible for
payment of accrued vacation time in a lump sum. At the time of such separation, he
forfeits his eligibility for longevity and hazardous &ty pay.       It is our opinion,
therefore, that a retiring employee is not entitled to receive longevity or hazardous
duty pay when he is compensated for his accrued leave in a lump sum. However, if ha
were to stay on the payroll and draw his vacation time, he would be entitled to receive
longevity or hazardous duty pay.

                                    SUMMARY

               A retiring employee is not entitled to receive longevity or
           hazardous &rty pay when he is compensated for his accrued
           leave in a lump sum.
                                                                       n




                                             MARK      WHITE
                                             Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General




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Honorable James B. Adams - Page Three         (ml-282)




APPROVED:
OPINION COMMRTEE

Susan L. Garrison, Acting Chairman
Jon Bible
Rick Gilpin
Charles Palmer
Bruce Youngblood




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