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        Honorable   Tom DeBerry,    Member
        State Board of Control
        Austin,  Texas

        Dear   Sir:

                                                Opinion No. O-3335
                                                Re:   Whether State employee may
                                                      draw twelve (12) days’ vaca-
                                                      tion pay after drafting into
                                                      Army.

                  In your letter of March 26, 1941, you request    our opinion   in re-
        sponse   to the following questions:

                  ‘Is an employee     of the State government   who is drafted for
          service    in the United States Army enti~tled to twelve (12) days’ va-
          cation with pay, as provided under the provisions         of the various
          State appropriations     bills, after i.nduction into the army?

                 “In other words, our question is, can such an employee draw
          pay from both the Federal    government   and the State of Texas dur-
          ing the first twelve (12) days of his service in the regular  army?”

                 The men whom you mention not being members         of either the National
        Guard of Texas, the National Guard Reserve      of Texas, the ‘Organized Reserves
        of the United States Army,   or the Naval Reserves    of the United States Navy, it
        is apparent from a reading of Article    5890a. Vernon’s   Civil Statutes, that it has
        no bearing on your question.

                 In the general rider to the Departmental  Appropriation   Bill, at page
        284, Vol. 2, General   and Special Laws, 46th Legislature,   we find the following
        provision:

                 “Vacation Allowance.    Department  employees   shall, without de-
          duction in salary,  receive not exceeding twelve days’ vacation, exclu-
          sive of Sundays and legal holidays , on which State offices are closed,
          for each State fiscal year, such vacation period to be mutually agreed
          upon by the head of each department with his employees,      provided,   that
          employees   belonging to the Texas National Guard may have their vaca-
          tion at the time of the meeting of the annual encampment.      Provided,
Honorable   Tom   DeBerry,    Page   2, O-3335




  that no employee for whom a salary is hereby appropriated,      shall
  receive   compensation   while on vacation unless he or she has been
  an employee    of the department for not less than six calendar  months,
  preceding   the vacation period.”

         The above does no more than authorize a twelve day vacation on pay
for departmental  employees.   It makes no attempt to grant to such employees
any pay after the termination  of their employment.  Our opinion No. O-2814.
From the case of Gutzwiller   V. American   Tobacco Co., 122 A. 586, Vermont
Supreme Court, we quote:

          “* * * A vacation, according       to Mr. Webster,   is a period of
  leisure   or rest;  a holiday.   This defini.tion, cl.early, implies a con-
  tinuation of service,    rather than that the service has ended.       The
  master,    who in recognition   of faithful service,   gives his servant a
  holiday, cannot be said to thereby terminate his relation of master
  to such servant.    * * *”

          From the opinion    of the Supreme     Court   of Washington   in State v. Case,
19 P.   (2d) 927, we quote:

         “Section 133, chapter 7, p. 67, Laws of 1921. reads as follows:
  ‘Each subordinate   officer and employee of the several. offices, depa.rt-
  ments, and institutions of the state government  shall be entitled, dur-
  ing each twelve months’ period, to fourteen days’ leave of absence with
  full pay.’

          “It is the relator’s   contention that, since he did not take a vaca-
  tion during the twelve months prior to the time that his connection with
  the office of the state auditor ceased, he was entitled to such vacation
  period after the severance       of his connection with that office.     The stat-
  ute, just quoted, provides      that ‘each subordinate    officer’ of the state
  government      shall be entitled, during each twelve months’ period, to
  fourteen days’ leave of absence with full pay. The statute, by its ex-
  press language, would appear to contemplate           that the one receiving    a
  vacation on pay must be a subordinate         officer or employee at the time
  the vacation was taken. We see nothing in the statute which would au-
  thorize the payment, for a vacation period, to one who had been an em-
  ployee of the state, subsequent to the time that his service ended.            The
  purpose of the statute, as we view it, was to give each employee,            during
  the time that he was in the service       of the state, a vacation of fourteen
  days on pay; but it does not follow from this that the state auditor could
  issue a warrant covering a vacation period which had not been taken,
.




Honorable           Tom DeBerry,       Page   3, o-3335




    and, in effect, grant the employee a vacation on pay after he had
    ceased to be an employee of the state.     If this could be done, it
    would be, in effect, the giving to the employee of a gratuity or bo-
    nus in addition to his regular   salary which he agreed to accept at
    the time the employment     or service  began.




           “* * * It is our conclusion on this branch of the case that,
    when the relator’s   service was terminated,  his right to a vaca-
    tion ceased and he no longer had a right to compensation     for a va-
    cation period which he did not take during the time of his employ-
    ment.*

           is difficult to see how a State employee,
             It                                         after he has been drafted
into the Army,    could be considered  as still being an employee of the State,
even on vacation.     However,  we do not find it necessary   to rest our opinion
on the proposition    that employment  technically  ceases upon induction into
the Army.

             Article      XVI,    Section   33, of the State   Constitution,   reads:

            “The Accounting Officers     of this State shall neither draw nor
    pay a warrant upon the Treasury        in favor of any person, for salary
    or compensation     as agent, officer or appointee, who holds at the same
    time any other office or position of honor, trust or profit, under this
    State or the United States, except as prescribed          in this Constitution.
    Provided,   that this restriction   as to the drawing and paying of warrants
    upon the Treasury     shall not apply to officers     of the National Guard of
    Texas, the National Guard Reserve,         the Officers    Reserve  Corps of the
    United States, nor to enlisted men of the National Guard, the National
    Guard Reserve,     and the Organized     Reserves    of the United States, nor
    to retired officers   of the United States Army, Navy and Marine            Corps,
    and retired warrant officers      and retired enlisted men of the United
    States        Army,   Navy,    and Marine    Corps.”

         From the above it is clear, without argument, that unless a man falls
within one of the exceptions   provided in the second sentence the Comptroller
cannot issue him a warrant    in consideration   of any employment by the State
subsequent to the time he is enlisted in the Army, whether as an officer or a
private.   It must be remembered     that in Carpenter  v. Sheppard,  145 S. W. (2d)
562, the Supreme Court    was dealing with a man who was an officer in the Na-
tional Guard and as such had been ordered into federal service       by the President.
Honorable   Tom   DeBerry.    Page   4, O-3335




It was on the express   ground that Carpenter   was an officer of the National
Guard and within the exceptions that he was held entitled to draw pay from
the State after his induction into the Army.    Your question, as we understand
it, relates to men who are not in the National Guard nor any of the other ex-
ceptions listed in the above constitutional  provision.  Hence, we are compelled
to answer your question in the negattve.

                                                 Yours    very   truly


                                             A TTORNEY     GENERAL       OF TEXAS




                                                         Glenn R. Lewis
                                                             Assistant

                                                                         APPROVED
                                                                           OPINION
                                                                         COMMITTEE
                                                                          BY-
                                                                            Chairman
GRL:LM




ATTORNEY     GENERAL         OF TEXAS
