                                                   p-J;7                 s
                           December 15, 1972

Hon. Bob Bullock                 Opinion No. M- 1279
State of Texas
Office of the Secretary           Re:   Questions relating to trans-
  of State                              fer of accrued vacation credit
Austin, Texas    78711                  and payment in cash in lieu of
                                        vacation taken, of state em-
                                        ployees and constitutional of-
Dear Mr.   Bullock:                     ficers of the State.
      Your request for an opinion asks the.following questions:
            "1.    May a state employee who is appointed,
                   without interruption of state employ-
                   ment, to a Constitutional Office of
                   the State of Texas be credited with
                   unused vacation entitlement accrued
                   prior to his appointment?
            "2 .   May a Constitutional Officer of the
                   State of Texas accrue and be paid for
                   all accrued but unused vacation en-
                   titlement upon termination from that
                   office?
            "3 .   If the above answer is in the affirma-
                   tive, when should payment be made?
            "4.    If there are insufficient funds in the
                   appointed officer's line item salary
                   appropriation, from which salary ap-
                   propriation should payment be made?”
     Accrued vacation entitlement is a vested right of State
employees and of their estates. Attorney General's Opinions
Nos. M-1075 (1972) and M-1252 (1972).
      Article 681313,Vernon's Civil Statutes, provides in part:




                                -6280-
Hon.   Bob Bullock, page 2      (M-1279)


              - “From and after the effective date of
            this Act, all salaries of all State offi-
            cers and State employees, including the
           *salaries paid any individual out of the
            General Revenue Fund, shall be in such
            sums or amounts as may be provided for by
            the Legislature in the biennial Approp-
            riations Act. . . ."

       It was held in Attorney General's Opinion No. M-1252.
               "Since payment for all duly accrued
            vacation time is payment for services
            rendered, it is our opinion that such
            payment constitutes salaries within
            the meaning of Article 6813b. . . .
            Employees for whom line item approp-
            riations are made may be paid for ac-
            cumulated vacation time from other
            salary funds."
     Section 7 of Article V of the current General Appropri-
ation Act is by its express terms applicable only to "annual
employees of the State". Therefore, it is our opinion that
the provisions of Section 7 of Article V relating to ",Employees
Vacation and Leaves" are not applicable to State officials.
     Terminal leave pay for all vacation time duly accrued was
required for the first time in the current General Appropriation
Act. Prior to its enactment, pay for accrued vacation was not
permitted except as provided in Article 6252-8a, Vernon's Civil
Statutes. See, Attorney General's Opinion No. M-1075 (1972).
     Section 7 of Article V of ,the current General Appropriation
Act provides in part:
               "If a State employee transfers df-
            rectly from one State agency to another,
            he shall be entitled to credit with the
            newly employing agency for his accumu-
            lated but unused vacation entitlement,
            provided that his employment with the
            State is uninterrupted. A State em-
            ployee who resigns, is dismisaed, or
            separates from State employment shall
            be entitled to be paid for all vacation
            time duly accrued."

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Bon. Bob Bullock, page 3 "   " .(M-1279)



     In view of the foregoing, your questions are answered
as follows:
      1. Whenever a State employee qualifies to a Constitu-
tional Office of the State, he ceases to be a State employee.
There is no authorization for payment for unused vacation
time for an employee whose employment was terminated prior
to September 1, 1972. If a State employee qualifies to a
Constitutional Office after September 1, 1972, such indivi-
dual would be entitled to be paid all vacation time duly ac-
crued. An employee's unused vacation entitlement may not be
transferred and credited to him in his capacity as a Consti-
tutional or statutory Officer because the above quoted pro-
vision regarding transfers of vacation time speaks only to
employees as distinguished from officers. The same language
regarding transfers of vacation time has been included in
the last five appropriation bills.
     2.  A Constitutional Officer of the State may not accrue
or be paid for vacation.
     In view of our answer to,question 2, it is unnecessary
to answer question 3 and 4.
                        SUMMARY
                        -------
           Section 7 of Article V of the current Gen-
           eral Appropriation Act relating to "Em-
           ployees Vacation and Leaves" is not appli-
           cable to State officials.

          -.




                                       ney   General   of Texas

Prepared by Bob Gauss
Assistant Attorney General




                              -6282-
Hon. Bob Bullock, page 4   (M-1279)



APPROVED:
OPINION COMMITTEE
W. E. Ailen,   Chairman
Bob Flowers
Marvin Sentell
J. C. Davis
John Grace
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant




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