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                                              The Attorney          ,General     of Texas

MARK WHITE
Attorney General


                                            Eonorable W. E. Snelson, Chairman      Opinioa No. lm-427
5upfelm       coull     BUlldltlQ
P. 0. Box 12548                             Senate Education Committee
*ustIn. lx. 78711                           Texas State Senate                     Re: Sick leave entitlement of
5%?l475.2591                                State Capitol Building. 128-C          state amployees
T&X      9101874-1367                       Austin, Texas 78711
r8lacopl.w     51214750266

                                            Dear Senator Snelson:
lw7     MSb St., suite         1400
oaIIas.   TX. 75201                              You have requested our opinion regarding an employee terminated
2w742a944                                   by the State Commission for the Blind on June 25. 1979, while the
                                            employee was drawing sick leave. In Attorney General Opinion MW-247
4524 Alberla          Ave. suite      150
                                            (198O)b.we said that this employee was not entitled to be paid a lump
El Paw.   lx.         79905                 sum &d compensation for that portion of his accrued sick leave vhich
91-                                         remained unused at the time of his discharge.

                                                 The pertinent provisions regarding sick leave in effect at the
1220DalIa AVO,SullO zoz
Noueton.TX. 77002                           tima the aforesaid employee was terminated were found in the
71-                                         Appropriations Act for the 1970-1979 biennium at page V-32. See Acts
                                            1977, 65th Leg. ch. 072 at 2699, 3146. They read in part:
w5 Brosdw*y,suits 312
Lubhock,Tx. 79401
                                                           b.   Employees of the State shall, without
eml747-522a                                           deduction in salary, be entitled to sick’ leave
                                                      subject to the following conditions:
4309 N. Tenth.Suite 8                                      An employee will eata sick leave entitlement
McAlleq TX. 78.501
512a82a7
                                                      beginning on the first day df employment vith the
                                                      State and terminating on the last day of duty.

200 Mein Piaza,SUIC UK)                                    Sick leave entitlement shall be earned at the
!%n Antonio. TX. 78205                                rate of eight (8) hours for each month or fraction
51212254191
                                                      of a month empl&ant.    and shall accumulate with
                                                      the unused amount of such leave carried forward
                                                      each month. Sick leave accrual shall terminate on
                                                      the last day of duty.

                                                          Sick leave with     pay may be taken when
                                                     sickness, injury. or pregnancy and confinement
                                                     prevent. the employee's performance 06 duty or when
                                                     a member of his immediate family is actually ill.
                                                     An employee who must be absent from duty because
                                                     of illness shall notify his supervisor or cause




                                                                      p. 1452
.             him to be notified of that  fact at the earliest
              practicable time. (Emphasis added).

         Under the provisions of the Appropriations Act, in our opinion,
    if an employee is not prevented by illness from performing his duty at
    the time he is terminated, the right to use accumulated sick leave
    never accNes and the termination of employment extinguishes the
    contingent right. See Attorney Ganeral Opinion MW-247 (19&O). Cf.
    City of Aouaton v. Caldwell. 582 S.W.Zd 494 (Tex. Civ. App. - Beaumont
    1979, no writ); Patton v. Governing Board of San Jacinto School
    District, 143 Cal. Rptr. 593 (Cal. App. 4th. 1978). Even if 8 state
    employee is genuinely ill and using accumulated sick leave, we do not
    think he is iarnunefrom involuntary termination and removal from the
    payroll. But if he is terminated after his right to use his
    accumulated sick leave has accrued. the employing agency remains
    liable for the value of the accrued but not-yet-exhausted leave time
    (or the portion applicable. depending on the duration of the illness).
    See Vangilder v. City of Jackson. 492 S.W.2d 15 (Ho. App. - St. Louis
    1973). Cf. Rduc. Code 113.905 (termination of school employees on
    diaabilit~eave); Attorney General Opinion R-352 (1974).

         Turning to your specific question , we advise that if an ill state
    employee subject to the General Appropriations Act for fiscal years
    1978-1979 is involuntarily terminated while on recommended extended
    sick leave ,fora bona fide illness that prevents him from performing
    his duty, he.16 entitled to be paid for his accrued. unexhausted sick
    leave time or, should the duration of the illness not exceed the
    unexhausted time. for the portion applicable. In Attorney General
    Opinion m-247 (1980). the word eaCCNede is used in a coloquial.
    non-technical sense.    Cf. Attorney General Opinion U-1075 (1972)
    (vacation benefits accrua.     Rovever. it otherwise correctly states
    the general ~rule applicable to state employees terminated at a time
    when the right to use accumulated sick leave entitlement has not
    vested and we reaffirm it. A different question is presented here.

                                 SUl4MARY

                   An ill state employee subject to the General
              Appropriations Act for fiscal years 1978-1979 who
              is involuntarily terminated while on recommended
              extended sick leave for a bona fide illness that
              prevents him from performing his duty is entitled
              to be paid for his accrued. unexhausted sick leave
              time or, should the duration of the .illnesa not
              exceed the unexhausted time. for the portion
              applicable.

                                       =Q



                                            MARK      WHITE
                                            Attorney General of Texas




                                    p. 1453
.   JOHN W. FAINlZRr JR.
    First Aaeistant Attorney     General

    RICRARD E. GRAY III
    Executive Assistant Attorney        General

    Prepared by BNCS       Youngblood
    Assistant   Attorney    General

    APPROVED:
    OPINION CoHnIlTRE

    Susan L. Garrison, Chairman
    Jon Bible
    BNce Youngblood




                                            p. 1454
