                        Nocember 18, 1970

Hon. Harold Ju--Marburger             Opinion No. M-731
Executive Director
Board of Regents, State Senior        Re: The proper method of de-
  CollegesrandUnlvers$tles                termlnlng the payment for
504 Sam Hquston Building,                 accumulated vacation and
Auet~ln,.~l$iaa78701                      slck.leave to be paid the
                                          estates of deceased State
Dear Mr. Marburger:                       employeee:.
          iou'haie recently kitten this office requesting our
opinion regarding the proper method of determiningthe payment
for accumulated.vacatlonand sick leave to be paid the estates of
deceased State smployees as they ,are~'deflned~ln
                                                Article 6252-&1,
Section l,.Vernon~s;CivllStatutes, :The prov$slons of Article
6252-h, Vernon's:CIvIl.Statu$es;:and  Article.V, Section 7f of-
the Ueneral.Approprlatlon:Blll,~~~~Houae
                                      Bill 2,O61st Legislature,
1969, 2tWCalled Seeelon,.whlch.pertalnto the.paymentaof accumu-
lated vactitlonand~slck leave to the edtate? of deceased State em-
ployees, ares-quoted~.resge.ctlaely.aa
                                    follows:
          Article 6252-h:
          %actlan-l-. 'Employee!as used In-.thliAct
     means any adpointed.,offlcer or:employeein a
     department of the state who la employed on a basis
     or in:a~.~posltiDn!no~ly;-requir~,ng not .lesa+han
     gC@;hours~pe~:year;.::but:ehall~not.~lnclude~members
     of .the.l=eg&slature.~o~~any
                                incumbent of an office
    .normally~$llled~by.votezof:thepeople?:norpereona
    .on plecework:baala; ~nor,operators of,-equipmerit
                                                     'or
     drivers of teams ~whose.wageeare Included~Sn.rental
     rate~pald the owners of said equipment or team; nor
     ang:$erson.whoIs covered by the ~Judlclal~Ret~rement
     System.of.theState :of,Texae;nor any person who Is
     covered by -theTeacher,Retirement Sgatem.of,Texae,
     except persons~employed~by the Teacher Retirement
     System, the Central Education Agency, .anddlaaslfled,
     administrative,and professional staftmembers em-
   c ployed by a,state lnstltutlon of higher education
     who have accumulated vacation or sick leave, or
     both, during such employment.


                             -3547-
Hon. Harold Marburger, page 2      (M-731)


          "Sec. 2. Upon the death of a state employee,
     the state shall pay his estate for all of the em-
     ployee's accumulatedvacation leave and for one-
     half of his accumulated sick leave. The payment
     shall be calculatedat the rate of compensation
     being paid the employee at the time of his death.
         "Sec. 3. Funds appropriatedfor salaries to
    the department or agency for which the employee
    worked shall be used In making payments provided
    for by this Act."
            Article V, Section 7f of the Qeneral AppropriationBill
provldesr
        '"f. Funds appropriatedIn this Act for
    salaries and wages'may be paid for all of the
    employee'saccumulatedvacation leave and for
    one-half of his accumulatedsick leave to the
    estate of an employeewhen said employee dies
    while employed by the State of Texas. The pay-
    ment shall be calculatedat-the rate of corn-
    pensatlon being paid the employee at the time
    of his death."
          The provlslons of Article V of the General Appropriation
Bill which specificallyrelate to a State employee's entitlement
to vacation and sick leave are quoted, In part, as follows:
          "Sec. 7. EMPLOYEES VACATION AND LEAVES.
     a. Annual employees of thenState shall, without
     deduction In salary, be entitled to a:vacatlon of
     two ,normalwork weeks ~ln.anyone fiscal year, such
     entltlement,tobe accrued proportlonately..for each
     month of sirvlce during the year.
                                                '-..
          'Annual employees with fifteen (15) or more
     years of employment with the State shall be en-
     titled to two normal work weeks plus five (5) ad-
     dltlonal normal worklng days of vacation In any
     one fiscal year.
          "Annual employees with twenty (20) or more
     years of employmentwith the State shall be en-
     titled to two normal work weeks plus ten (lO)ad-
     dltlonal working days of vacation In any one fiscal
     year.
                                -3548-
Hon. Harold Marburger, page 3    (M-731)


          "Total accumulated leave to any employee may
     never exceed the equivalent of his earned vacation
     entitlementfor the preceding two-year period. No
     employee shall be allowed any paid vacation entltle-
     ment until he has had continuous employment with
     the State for six (6) months.
          "I,ncomputing vacation time taken, time during
     which any employee la excused from work because of
     holidays shall not be charged against the employee's
     vacation.
          91
           . . .
          "b. Sick leave with full pay,for regular em-
     ployees of the State may be allowed at the rate of
     one normal working day for each full month of con-
     tlnriousemployment,and accrued amounts of slok
     leave may be carried forward for a maximum period
     of three (3) years of continuous employment. . . .


It Is noted from the above quoted provisions that an employee's
entitlementto vacation and elck leave Is accumul&ted proportionately
for each full month of continuous empl6ymidtit..
          Therefore, It la apparent that we must construe the word
"month" In the context In which It Is used to determine the proper
method of calculatingaccrued vacation and sick leave of deceased
State employees.
          Blacks Law Dictionary, 4th Edition, defines the word
"month" as follows: "The wofld 'month'unless otherwise defined,
means 'calendarmonth'         Moreover, It Is stated In 55 Texas
Jurlsprmdence2d 607, T&n;,'93 as follows:
         "The word 'month'at common law originally
    meatita lunar month of twenty-eightdays. As
    used In the civil statutes of this state, the
    term ordinarily means a calendar month or a month,
    as designated In the calendar, without regard to
    the number of days It may contain.
         II
          . . .I,
          On the basis of the foregoing authorities, our opinion Is
that a State employee as defined by Article 62524& Vernon's Civil
                            -3549-
Hon..Har,old, Marburger, page 4          (M-731)


Statutes,whose employment terminatesby his death prior to the
e.xplratlon
          of’ any oalendar month 18 not entitled to receive credit
for vacation or elok leave for that month.
          In addition, for the purpose of paying accrued vacation
and elok leave upon the death of an employee,.hle estate should be
paid for the same number of calendar days to which the employee’
would have been entitled had he lived and claimed his vaoafion and
sick leave beginning on the day following the date.of his death and
ending on the last working day through which such.,leavewould have
extended.
          To Illustrate the above holding we submit the following
hypotheticalfact altuatlon. A State employee a8 deflliedby Seo-
tlon 1 of Article ~6252-&, Vernon’8 Civil Statutes, with 19 years
oontlnuous service with an agency of the State government and who
wa8 an annual employee paid In 12 monthly InatallmCntadied on
November 10, 1970, after the completion of the work,.dayof November
10, 1970. At the tlme,of his death he has accumulated30 normal
working days of vacation leave and 36 normal working days of sick
leave. As we’have previously held; since the employee-diedbefore
serving the full month of November, his estate would receive no
payment.for either vacation.,orslok 1eav.efor that month.
            In thls~-ilLLu~tratlon~
                                 the beceased.ern&oyee!s’  estate would
.be entitled to pament by the provisions of Article 6252-&i, Ver-.
 non’a~ Civil Statu!ies,~
                       for 30 dajrs sccrwd  vacation   leave and one-
half.‘of ‘36’~&kltig~‘8ags
                         ‘sickl+giie $hich would., be a .totial
                                                              ,of 48
 worklng days of accrued leave. By~oalculat’lngbby    the calendar 48
working day&from November 10, 1970, the date of th,e,aub$eotem-
ployee’s death, the date on which the accumulated leave,wouldter-
minate would be January 26, 1971. This calculationexoludes as
working days during this period those holidaye..eet    forth in Article
Vr,Section.6cof the General.Approprlatlon~Blll,      those b,elngNov-
ember 11, 26,,Deoember 23, 24-and 25, 1970, ,andJanuary 1 and 19,
1971. Based on the foregoing calculations,the State agency for
which the employee was employed at the time of his death Is ob-
 ligated to pay ~thee&ate of the deceased employee his monthly
 salary for the months of November and December,~1971 and for 26
days during January, 1971. The payment to the eetate~for the
month of January, 1971, la determined by multiplying.26oalendar
days credited.for January, 1971, by the employee’s monthly salary
and dividing the resulting figure by 31, the number of calendar
days In January, 1971.
                      SUMMARY
          A State employee ae defined by Article 6252-
     aa, V.C.S., whose employment la terminatedby his
                                -3550-
Hon. Harold Marburger, page 5        (M-731)



         death prior to the expiration of any calendar month
         Is not entitled to receive credit for vacation or
         sick leave for that month.
              For the purpose of paying accrued vacation and
         sick leave upon the death of an employee, his estate
         should be paid for the same number of calendar days
         as to which the employee would have been entitled
         had he lived and claimed his vacation and sick leave
         beginning on the day following the date of his death
         and ending on the last working day through which such
         leave would have extended
                                  fl
                                p~$ truly yours,
                               /'

                                  WF    4d?
                                       c. ' RTmi?i
                               Atto ey General of Texas
                          +
Prepared by Ivan R. WIlllams, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Max Flushe
Austin Dray
James Quick
S. J. Aronson
.MEADEF. QRIFFIN
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
NOLA WHITE
First Assistant




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