                              The Attornq         General of Texas

JIM MATTOX                                     December 20, 1985
Attorney General


Supreme Court Building        Honorable Wilhelmina Delco         Opinion No. ~~-401
P. 0. Box 12546               Chairman
Austin. TX. 76711.2546        Righer Education Committee         Re: Validity and Interpretation of a
51214752501
                              Texas House of Representatives     rider to the General Appropriations
Telex 9101674-1367
Telecopisr  512/475.O266
                              P. 0. Box 2910                     Act relating to a sick leave provi-
                              Austin, Texas   711769             sion which excludes faculty members
                                                                 at institutions of higher education
714 Jackson. Suite 7W                                            who have appointments of less than
Dallas, TX. 75202.4506
                                                                 12 months
214/742-6944

                              Dear RepresentattireDelco:
4624 Alberta A”%. Suite 160
El Paso. TX. 79905-2793            You have requested the opinion of this office concerning a rider
91515333464                   to the General Appropriations Act that was passed by the Sixty-ninth
                              Legislature. The rider in question states that
1001 Texas. Suite 7W
Houston, TX. 77002.3111                [olther than faculty with appointments of less
7131223-5886                           than tw,c:Lve (12) months at institutions of higher
                                       education, employees of the state shall, without
                                       deduction in salary, be entitled to sick leave
806 Broadway. Suite 312
Lubbock, TX. 79401-3479                subject to the following conditions. . . .
6C6f747.5236
                              Acts 1985, 69th !,eg., ch. 980, art. V, §8c, at 7765. Prior to the
                              Sixty-ninth Legislature, appropriation acts did not exclude faculty
4306 N. Tenth, Suite S
McAllen, TX. 76501-1665
                              with appointments of less than 12 months at institutions of higher
5121682.4547                  education from the usual sick leave provisions for state employees in
                              similar riders.
200 Main Plaza, Suite 400
                                   Without asking specific questions, you inquire generally about
San Antonio. TX. 76205-2797
51212254191
                              the validity of the language in that. rider that excludes faculty
                              members with appc,intmentsof less than 12 months. We conclude that
                              the rider does not conflict with general statutory law and that the
An Equal Opportunity/         equal protection clauses of the Texas and United States Constitutions
Affirmative Action Employer   do not require thle legislature to provide identical sick leave for
                              faculty members and for other state employees. It is our opinion that
                              legislation which permits faculty members to have no absences due to
                              illness without 1~ deduction in salary would raise issues involving
                              equal protection, 'butwe believe the rider in question does not have
                              that effect.

                                   An appropriation act may detail, limit or restrict the use of
                              funds appropriated by the act. It is well settled, however, that a
                              rider attached to the General Appropriations Act may not conflict with



                                                       p. 1835
Eonorable Wilhelmina Delco -'2    (JM-401)




general law. See Jessen Amociates,  Inc. v. Bullock, 531 S.W.2d 593.
600 (Tex. 1975);Moore v. ~leppard, 192 S.W.2d 559 (Tex. 1946); State
v. Steele, 57 Tex. 203 (11882); Attorney General Opinions JM-343
(1985): M-1199 (1972). Gd!neral statutory law does not specify sick
leave for any state emplayees. Aence , ;he provisions in the- rider
relating to sick leave are, not in conflict with provisions of the
general law.

     General statutory law does specify that all state employees who
are employed in the offic'as of state. departments or institutions or
agencies, and who are paid tona full-time salary basis, shall work 40
hours a week. V.T.C.S. art. 5165a. 51. Article V. section 8c of the
General Appropriations Act recognizes that an employee required by law
to work a minimum of 40 hours each week during the period of his
employment may be prevented by illness from performing that duty. It
expressly authorizes the use of appropriated funds for specified sick
leave credits which a state employee earns and accumulates and may use
during absence from work due to illness.

     Conditions of employment of faculty members at institutions of
higher education with appoiztments of less than 12 mouths differ from
those of other state employees. Unlike the usual state employee,
including the staff and administrators of institutions of higher
education, a faculty membe:rwith an appointment of less than 12 months
is an employee with a contractual relationship governed by state law,
the rules and regulations Iof the governing body of the institution,
and the terms of his appo:tntmentsfor specific years. Ordinarily, a
faculty member's contract provides a period of appointment for nine
months that does not include the summer months. While he normally
remains an employee for clartainpurposes throughout the year, his
services are required to be performed during the period of his
appointments and his salarr is determined on that basis. See Attorney
General Opinion JM-76 (1!)83). General statutory law requires the
establishment and review of faculty academic workloads.         Public
information reports of tht! academic duties and services performed by
each member of the facult,y during the nine-month academic year are
submitted to the Coordimlting Board, Texas College and University
System, for further dissemination. See Educ. Code §§51.401 - 51.405.
A faculty member has a ddfferent lex     of responsibility and super-
vision than the state emr'loyeewho is hired to work 40 hours each
week.

     Section 51.401 of the Education Code directs the institutions of
higher education to "manage their institutions and institutional
resources to achieve maximno effectiveness and to provide the greatest
attainable educational benefit from the expenditure of public funds."
It is common practice at such institutions that, if classes cannot be
taught by the faculty membr::to whom they are assigned due to illness,
they are taught whenever possible by faculty members who substitute
for each other or the classes are postponed and rescheduled at a later
date. This practice is considered to be the most efficient and cost-
effective way to handle an unavoidable absence of a faculty member.


                                 p. 1836
Ronorable Wilhelmina Delco .-3     (JM-401)




We believe that educational institutions are authorized to adjust the
use of faculty personnel in a manner that best meets the needs of the
institution. A faculty member is not employed to work a set number of
hours in any week but is a:mployedto perform the services and duties
assigned to him during the period of his appointments.

       In our opinion, the fa,ctthat a faculty member with an appoint-
ment of less than 12 months is not entitled to accrue and use or
accumulate sick leave credits under the terms provided by the General
Appropriations Act, artichz V, section 8c of the act, does not require
the institution to deduct ,HIabsence due to bona fide illness from the
compensation set by the faculty member's contract of employment for
academic semesters. Abser.ce due to unplanned illness Is an imulied
and necessary element of compensation. -Cf. City of Orange v. Chance,
325 S.W.2d 838, 841 (Tel:. Civ. App. - Beaumont 1959, no writ);
Attorney General Opinion E-860 (1976) (sick leave ma9 be embraced
within the ambit of the salary which a commissioners court was
authorized to fix for county and precinct officials). A decision as
to whether a faculty member's pay is reduced due to illness is a
matter within the discret:.cmof the institution. See State Auditor.
Interpretations of Facultyljlck Leave Provisions --House Bill No. 20;
69th Legislature (1985), pursuant to Acts 1985, 69th Leg., ch. S80,
art. V, $81; at 7766 (state auditor shall provide uniform interpreta-
tions of leave provisions). Section 51.108 of the Texas Education
Code directs the governing board of each state-supported college or
university   to issue regularions concerning authorized and unauthorized
absence from duty of faculry members.

     It has been suggested that the sick leave rider In the current
Appropriations Act discrimtnates against a small number of Texas state
employees by excluding then from the sick leave benefits provided all
other state employees. A s':atelaw that treats some people differently
than it treats others rairresa possibility that the equal protection
clauses of the Fourteenth Amendment to the United States Constitution
and article I, section 3 oE the Texas Constitution may be violated.

     The Texas Constitutf,on guarantees equality of rights to all
persons but does not forb&l reasonable classifications. A classifica-
tion is reasonable if it 13 based on a real and substantial difference
that relates to the subjea:t:of the enactment and ouerates eauallv on
all within the class. See Railroad Commission of Texas v. Miiler,.434
S.W.2d 670 (Tex. 1968);xG:e v. Richards, 301 S.W.2d 597 (Tex. 1957).
Classifications made byy:he     legislature are largely within the
discretion of the legislature and will not be stricken down by the
courts where there is a re.a:L
                             difference to justify the separate treat-
ment undertaken by the legislature. See Dancetown, U.S.A., Inc. v.
State, 439 S.W.2d 333 (Tel:.1969); CalKt    v. American International
Television, Inc., 491 S.W.:Zd 455 (Tex. Civ. App. - Austin 1973, no
writ); Attorney General Op,tnionMW-421 (1982).

     In reviewing legislattcm under the equal protection clause of the
Fourteenth Amendment, the IJnitedStates Supreme Court usually has used



                                 p. 1837
Honorable Wilhelmina Delco -'4 (~~-401)




two primary standards. If a challenged law burdens an inherently
"suspect" class of persons or impinges on a "fundamental" constitu-
tional right, the law will be struck down unless the state demon-
strates that the law is justified by a compelling need. If a suspect
class or fundamental right is not involved, the law will be upheld
unless the challenger can show that the classification bears no
rational relationship to a legitimate state purpose or objective. See
Vance v. Bradley, 440 U.S. 93 (1979); San Antonio Independent Schx
District v. Rodriguez, 411 lJ.S. 1 (1973). On a few occasions, the
court also has utilized an :intermediatetest which asks whether the
challenged law furthers a substantial interest of the state. -See
Plyler v. Doe, 457 U.S. 202 (1982).

     We believe the rider ar.thorisingcertain sick leave for all state
employees except faculty with appointments of less than 12 months
affects neither a suspect cla.ssnor a fundamental constitutional right
and is not the kind of situs-tionin which a court is apt to apply the
intermediate substantial state Interest test.        This leaves the
rational basis test. Detenclnation of whether a challenged classifi-
cation is rationally relate'd to achievement of a legitimate state
purpose involves the questicmsof whether the legislature has a leglti-
mate purpose and also whett.er it is reasonable for the lawmakers to
believe that use of the challenged classification will promote that
purpose. See Western 6 South,em Life Insurance Company v. State Board
of Equaliaon      of CalifoE&,     451 U.S. 648 (1981). We cannot
conclude that the varying treatment     of faculty and other state
employees in the matter of sick leave is so unrelated to the
achievement of a leaitimate ouruose that a court can onlv find that
the legislature's actions w&e‘ irrational. See Vance v. Bradley,
supra. Cf. Ohio Universlt Faculty Assoclationv. Ohio University,
449 N.E.2d 792 Ohio Ct. ApF. 1982) (dissimilarity between nonacademic
        --7----
university employees and Eaculty justified university's different
treatment of collective ta,rgaining). See also Attorney General
Opinions ~~-60 (1983) (disf:ussing in detail issues of constitu-
tionality under Texas and U.S. constitutions as applied to funding for
certain schools under Found,stion School Program); Attorney General
Opinion HW-572 (1982) (relating to limitation of employment of certain
city council members and thr,equal protection clauses).

     We predict that a court would find that faculty members and other
state employees are not so similarly situated that the equal protec-
tion clauses require the legislature to apply the same sick leave
provisions to both classes of employees. It is our opinion, however,
that a determination that one class of employees may never be absent
from the classroom, laboratory or office due to illness without a
deduction from salary Is prcbably arbitrary and would raise a question
of equal protection. We do not believe the rider in question pro-
hibits all absence by faculzy due to illness without a deduction from
salary.

       We also believe that Irovisions for sick leave are distinguish-
able    from provisions for vacation leave.       Beginning with the



                                p. 1838
Eonorable Wilhelmina Delco --5 (~~-401)




Appropriations Act passe<, in 1981, the legislature has excepted
faculty with appointments of less than 12 months at institutions of
higher education from the provisions authorizing paid vacations for
employees of the state. .--
                          See Acts 1985, 69th Leg., ch. 980, art. V,
58a. The denial of paid vacations to faculty members during the
periods of their teaching appointments while allowing vacation leave
for other state employees L:sbased on what appears to be a reasonable
classification and a diffe:rencethat justifies separate treatment. In
our opinion, a court would Eind that such denial of vacation leave to
faculty members is rationally related to the achievement of a
legitimate state purpose, namely, the furtherance of the greatest
attainable educational benefit from the expenditure of public funds.

     Assuming the restrict:lvelanguage in the rider is valid, you also
ask whether faculty who accrued sick leave prior to September 1, 1985,
may receive all of such sick leave since it was accrued under previous
Appropriations Acts. We c.oncludethat, during the current biennium,
the General Appropriations Act does not authorize appropriated funds
for the use of sick leave credits earned and accumulated by a faculty
member during periods of prior acts if the member is absent from
teaching duties as a membar of a faculty. The exclusion of faculty
members from the act does not change college and university employees'
accrual or use of sick le!ave credits in their capacity as staff or
administrators, We conclude that the accumulated and unused sick
leave of a person whose employment with the state is uninterrupted
remains to his credit and 'maybe used when and to the extent that the
person is an employee eligible to use sick leave. See Attorney
General Ooinion JM-76 (19831 (relating to use of accrued vacation time
by university employee-who serves in more than one capacity); State
Auditor, Interpretation of I'acultySick Leave Provisions -- House Bill
No. 20, 69th Legislature (?985). -Cf. Acts 1985. 69th Leg., ch. 980.
art. V, 08f. at 7766.

     It has been suggestxd that an appropriations act rider that
denies faculty members the use of sick leave accrued and accumulated
prior to the date of the xt may be prohibited by the clauses of the
United States and Texas Constitutions which provide that the state may
not pass a law impairing the obligation of contracts. U.S. Const.
art.. I, 110, cl. 1; Tex. Const. art. I, 516. We conclude that the
fact that a statute may become part of an employee's contract which
the state may not impair by a subsequent enactment does not raise an
issue which is applicable to the rider in question. See Ward V. City
of San Antonio, 560 S.W.21 163 (Tex. Civ. App. - Sanntonio       1977,
writ ref'd n.r.e.) (relati:>gto amendment to state statute that would
impair contract between fireman and city).

    We are not aware of any state statute which has expressly provided
sick leave for state emp3cyees. But cf. V.T.C.S. art. 1269111,526
(providing sick leave undl%r firemen's and policemen's civil service
act).   The purpose of each General Appropriations Act is the
appropriation of state funds:to be used by state government, including
institutions of higher education, during the biennium of each act, and



                                p. 1839
                                  (JM-401)                               .
Honorable Wilhelmina Delco - 6




each act expires at the end of its biennium. Article VIII, section~6
of the Texas Constitution provides that no appropriation may be made
for a period longer than tva years. A General Appropriations Act does
not enact substantive law but contains riders that detail, limit, or
restrict the use of the funds appropriated by the act. The riders in
each act apply to funds apl'ropriatedby that act and, like the rest of
the act, expire at the end c'fthe biennium. See Acts 1985, 69th Leg.,
ch. 980,  art. V, at 772!).. When each session of the legislature
appropriates funds with rl.dersdetailing the use of those funds, it
does not impair rights th;.thad vested under previous appropriations
acts.

                               SUMMARY

             Restrictive language relating to faculty sick
          leave in article! V, section 8~. of the General
          Appropriations Act passed by the Sixty-ninth Leg-
          islature does not conflict with general statutory
          law and does not violate equal protection or
          impairment of cclrtract clauses of the Texas and
          United States Constitutions.      This language,
          however, does not prohibit absences due to illness
          without a decrejise in pay. A faculty member's
          sick leave that accrued prior to September 1,
          1985, remains to his credit and may be used if he
          is -an employee eligible to accrue and use sick
          leave.




                                                 MATTOX
                                         Attorney General of Texas

JACK EIGETOWRR
First Assistant Attorney Ga?ueral

MARY KELLER
Executive Assistant Attornl!yGeneral

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Coumittel?

Prepared by Nancy Sutton
Assistant Attorney General




                               p. 1840
