              OFFICE OF THE AlTORNEY      GENERAL   OF TEXAS
                                 AUSTIN
y-%2z
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        Honorable J.S.Mumaimn
        lmmutive Mrsator
        State Department of Pub110 Nelfare
        Auatln, Texas
        Beer sir:




                  ‘uie
                     reJoei*aayour 1                tober 9, 1940,
        whioh ia aelf-explnnatoryan                  P, aa followrr




             . . . .
                 "On septmlb4W 29, L910, Mr. EZarrirr
                                                    rilea
            with the Department a olalm for ralary peymn%
        Honorable   J.   8.   Msrohlson, Pam 2


              for the @riOdOf tine k&y 23 t0 J-0 3, 1940,
             being the balpnos or unexpended portion oi his
             vaoation period.
                  “As Xxxeautlvs Dlreotor~of the State Dapart-
             went of Publlo Welfare, I respsottullyrequest
             to bs advised as to whsthsr or not the Department
             0~11legally pay&r. Earrla for ths period May 23
             to June 3, 194C* The amount of payment 1s not
             qusstlonedr=
                   we 0all JTOW atttwhn to tbet part 0r Eje0tim 2
        of tileDeppartmental ApproyrlatronBill, S. Be 427, Acts 1939,
        46th Leg., Speolal Laws, page 7 (at page 224) whloh prtaLns
        to vacation alloynoes to state smployeee. Said provision
        reads as followa:
                   waoation Mlowanos. Dspartorsnt       em loyesi
             shall, witmut debuotlon in salmy, ~~08! ve not
             exoseding twelve days’ vacation,    utolurive oi
             Sumdays~endlop1 holld&]ol,on wh5.ohState of-
             floes are olassd, for each State tlsoal par,
             swh vaoetlon psrlod to be mutually agreed upon
             by the head ot aach degrrtbbnt    wlth his employees,
             provided,that cmploye~s belaagiq        to the Tsxaa
             BlsrtlonalOwrd may have their    vaoation   at the
             time of the m6ot~   o‘ft&a?annual eaoarapnent.
             irovlded, that 00 employos for whhola    a salary is
             h%rsby appropriated,shall recslva compensation
             while on vaoatlon unless he or she has been an
             employes of the departmentfor not leas than six
             oalendar mnths preocpdingths vaoatloa pWiOQ,*
                  Th6 above quoted provision ot the Departrmntal
        AppropriationBill would aewa to oontemplat6  that one muat
        be a departmentalsraployss&r&g the vaoatlon period In
        order to reoelve ,gayZor th6 Yaoatfon period. To this Of-
        rat, we quote Srom.the oa8e of 5utzwlllorv. Amerioan
        Tobaooo CO. et al,,122 A. 586, Supreme Court of Vermont,
        as follows:
                   *. . . A VaOationi aOO&ding to Ar. Webstsr,
              ia a period o? lsleure o? resti,a holiday. This
              definition,oleorly, impllsr  a eontlouation   of
              servioe, rtitherWan thottthe semfoe     has ended.




1-. A
                                                              ..,
                                                                    C


mnorable    J.   8. &urchDaina,
                              Page 3


     The imeter, who ln r6oognltlonof SalthSul s4r-
     vIo4, gives hie servant a holiday, oanuot be said
     ts thereby tcsrmlnatahis relation oS meter to
     suoh asrvant. . . ."
            In the oaso OS State ax r41. Uonsall V. Cam, State
Treasurer,19 Y. (Zd) 92PI the Suprems Court OS Hashing&n,
had under oonsld4ratlona pipblem somwhat slaillarto thy one
pressnt hare.    We quote,.at 14z@h, from #aid oasa, as Sollowsr
             "The relator, C. 8. Bonsall, for more than
     a y8ar prior to January 11, 1933, was the duly
     qualifiedand aotlng deputy auditor OS thin state.
     The responds& la the duly elrwted, qualified,
     and aoting treasurer of the stats.      The relntor*o
     oonneotlonwith t&4 atate audltorfeofflea was
     sever%d January 11, 1933, and he.has not rinoe
     that tlfw been lnth4 e6rvioe of the stat. in the
     auditor's 0rrioO. Janwry 10, 1933, or the daT
     before his omasotion wtth the auditor's oKloo
     osaeed, the relator    pm    ed a vowher for a par-
     iod OS Sourt8aa days, Y r Oh was in addition to th4~
     regular    1Ponth)yaompensationwhioh h4 had reoeivrd
     during his tern OS servioe. Tha stat4 auditor al-
     lowed the olalm and leewd      a wBFlps.nt
                                              therefor.
     When the warr(Lllt  rau premntsd to the state tress-
     urer, that orrioer    nru'urredto pay the s-0, 01ele-
     Ing that it was illegal. During the year prior
     to January 11,1833, the rdlator had taken no vaoa-
     tion, and the warrant issued waa intended to owor
     ths vaoatlon piwlod.
          wSeotIon 1.33,ohaptar 7, p. 69, Lams of 1921,
     reads as rcdbwsr Viaoh subordinateoSSlo8r and
     employee of the several oSSIo4s, deparUt4nts,and
     Inetitutlonsof the @ate (aovcprrunentshall be en-
     title&, during eaoh trrlv4 raonths'gariod, to Sour-
     teen   daya*   leave of absents   with   f’ull   pay.4

          *(l) XC Is the relator's oontention,that sin40
     ha did not take a vaoatlon during th4 twelve months
     prior to the tlae that his oonneotionwith th4 of-
     Sloe OS th4 stat4 auditor  oeassd, hs was entitled
     to suoh vacation period after the aeveranse OS his
Honorable J. S. N~ohieon, Page 4


    oonneotlonwith that oillioa. The statute, just
    quoted, provides that *raoh eubordlnata  o?flaer*
    of the state government shall be ontitled, dur-
    ing each tW@aW IQOdhd ptirlod,tQ rourteen days’
    leave oi abeenoe with full pey. The statute,
    its BXprelle1aZigwge.*rOtid a’.pwr t0 COIIteiDJ71
    that the one reoeivins a vaoation  on pay met bs
    a subordinateoffleer or sm~loyee at the time
    the vaoation was taken, RB see nothlng Ln the
    statute whioh would eutlrorirethe paymom, ror a
    vacation period, to .#a16
                            who bad been an .mnplqyee ”
    of the state. subsequent to -&hotime that his ... ..
    service ended. The DUr~8S of the statute, a8
    we view it was to give each daployee during
    the time tikt he was in the servloe o,i the state,
    a vaoatlon of fourteen days cm payi but it does
    not follow iron this that the state auditor ootid
     issue   a warm&t   corerlag   a vaootlon   perked which
     had not been Faken, and, in effeot,   grant   th.
     employae a vacation   on pay after he had ooaaed
     to be en employee oi the atate, Xi this could
     be done, it would be, in erieat, the glv
     the employee of a gratuity   or bonus in add9” tion
     to his regular 8alary   whiah he agrood to aooept
     at the time the employment or eervloo began.
             0. . * .

           “(2) St is undoubted3ytrue’that during the
     term of the service the 8tato auditior has a die-
     oretion to determineat what time the rtrspeotite
     employees say avail theafmlves of tw vaoation
     period On pay, as provldod in the statute but
     when the smployaentsOa#et, the state auditorts
     diaorstlonIn the matter likewfae oeaaea, and it
     becames a question rnersly0r the oonstruotion0r
     the statute. The construotlbnplaoed upon the
     statute heretofore by the attorney general’s of-
     iioe should be given proper oonsideratlon.but it
     is not controlling, %t Limour oonolwion-on this
     branoh of the oar&ethat, when th6 relator’s f!Or-
     vioe was terrntnntecl.hfa right to a oaoatZen
     ceased and he no lonmr had a rikxhtto ooaDen8a-
     tion for a vaoatlon ps-rlodwhioh he did not take
     curing the t1Irle0r Ns s&pl~OymQt*" (Under-
     aoerixlgours)
Honorable   J. S.Murchleon,Pa&e 6


          From the faote as set out In your letter, It is
a.gpuent that ior.iiarriswas not in the eaployment or the
State betWean Kuy 23, 1940, and June i5,1940, BOr thle
reason, you are adviosd that atr.&m-la  aannot be le&ly
paiC for the gerlod betweenMay 23 and Juno 3, 1940.
                                    Yours   very        truly

                               ATTCRXlX Q-mU             OB TiEAS




                                                   me      shoptaw




                ATTORNEY G-L    Ol?TEXAS
