                              QBfficeof tly 8ttornep &nerd
                                            @ate      of IEexas
DAN MORALES                                     June 17,1992
 ATTORNEY
       GES’ERAL


      Honorable Gonxalo Barrientos                    Opinion No. DM-129
      Chairman
      Committee on Nominations                        Re: Whether a home rule city may,
      Texas State Senate                              consistent with article III, section 53 of the
      P. 0. Box 12068                                 Texas Constitution, create a “sick leave
      Austin, Texas 78711                             pool” of sick leave          contributed    by
                                                      employees for use by employees who have
                                                      exhausted their sick leave (RQ-287)

      Dear Senator Barrientos:

              Your question involves the authority of a municipality to create a “sick leave
      pool” to which municipal employees may presently and in the future contribute
      previously acquired sick leave time and from which other employees may draw if
      they are ill but have no sick time left. t We are informed that you are specifically
      concerned with the powers of a home rule city, and we will limit our discussion
      accordingly. You ask whether a home rule city may create such a “sick leave pool”
      without offending article III, section 53 of the Texas Constitution. Before reaching
      the constitutional issue, we will consider the legislative power of a home rule city to
      implement a sick leave pool.

               Home rule cities possess the full power of self-government, provided that
      they may not adopt a charter provision or ordinance that is inconsistent with the
      constitution or general laws of the state. Tex. Const. art. XI, 9 5; see Lotver Colorado
      River Auth. v. Ci@ of SanMarcos, 523 S.W.2d 641 (Tex. 1975); Forwood v. City of
      Taylor, 214 S.W.2d 282 (Tex.~ 1948). Thus, home rule cities look to acts of the
      legislature not for grants of authority but only for limitations on their powers. Burc!r
      v. City of San Antonio, 518 S.W.2d 540,543 (Tex. 1975); Forwood, 214 S.W.2d 282.
      Home rule cities are as a general matter authorized to establish compensation and

             htidc  6252~Se, V.T.C.S., requires each state agency to establish a sick leave pool to benefit
      employeeswho suffer a catastrophicillness or injury.




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Honorable    Gonxalo Barrientos       - Page 2        (DM- 12 9 1




conditions of employment of their employees, including sick leave.2 See Byrd V. City
of Dallas, 6 S.W.2d 738 (Tex. 1928); Attorney General Opinion H-1303 (1978). A
home rule city therefore has authority to implement a voluntary sick leave pool for
its employees by adopting any charter provision or ordinance necessary to establish
it.

       We next address article III, section 53 which provides as follows:

                 The Legislature shall have no power to grant, or to
            authorize any county or municipal authority to grant, any extra
            compensation,   fee or allowance to a public officer, agent,
            servant or contractor, after service has been rendered, or a
            contract has been entered into, and performed in whole or in
            part; nor pay, nor authorize the payment of, any claim created
            against any county or municipality of the State, under any
            agreement or contract, made without authority of law.

Tex. Const. art. III, 3 53; see also id. 3 44 (similar provision applicable to state).

        Sick leave is a form of compensation or an allowance within this provision.
See Ward v. Cityof San Antonio, 560 S.W.2d 163 (Tex. Civ. App.-San Antonio 1977,
writ refd n.r.e.). Article III, section 53 of the Texas Constitution bars a city from
implementing a sick leave pool in a way that grants an additional benefit to its
employees for work already performed. Attorney General Opinion JM-1160 (1990).

        The courts have addressed the constitutionality under article III, sectiqn 53
of sick leave provisions of the firemen’s and policemen’s civil service statute. Ward,
560 S.W.2d 163; Austin Fire & Police Dep’ts v. City of Austin, 224 S.W.2d 337 (Tex.
Civ. App.-Austin 1949), afd in part and rev’d in part, 228 S.W.2d 845 (Tex. 1950).
Although these decisions concern specific provisions of law, they can provide.some
general guidance about the question before us.




         *ff a home rule city has adopted chapter 143 of the Local Government Code, providing civil
service protection for policemen and fErnen, it must comply with the code provision on sick leave. See
Local Gov’t Code 0 143.045. Since you do not inquire about civil service employees we will not
consider whether their inclusion io a voluntary sick leave pool would bc consistent with chapter 143 of
the Local Government Code.




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Honorable    Gonxalo Barrientos       - Page 3       ( DM-12 9 1




        In Austin Fire & Police Departments, firemen and policemen sought a
declaratory judgment construing the sick leave provisions of the newly enacted civil
service statute, which allowed firemen and policemen to accumulate up to 90 days
sick leave and to be paid on retirement for accumulated sick leave.3 The plaintiffs
claimed that firemen and policemen employed before the effective date of the civil
service statute were entitled to accumulate sick leave from their date of
employment, not merely from the effective date of the statute. The court of appeals
held that the entitlement to sick leave benefits under the statute began with the
effective date of the statute, not the date of employment.      “Since retroactive sick
leave benefits would have the effect of granting extra allowance to a public servant,
after the services had been rendered, such an act would not be constitutional.” 224
S.W.2d at 339 (citing Tex. Const. art. III, 6 53). The Texas Supreme Court agreed
with the court of appeals that the sick leave benefits provision applied only from the
effective date of the statute, stating that this construction of the statute made it
unnecessary to reach constitutional questions.4

         A subsequent case resulted from a 1975 amendment that removed the 90-day
limitation on accumulation of sick leave and allowed payment upon retirement for
all accumulated sick leave without limit. Ward, 560 S.W.2d 163. The court held that
retiring employees could not be paid for more than 90 days of the unused sick leave
they had accumulated prior to the effective date of the amendment, because “[t]he
payment of more than 90 days sick leave accruing prior to September 1, 1975, would
be in violation of Art. 3,s 53 of the Texas Constitution.” Id. at 166.

        Thus, a sick leave pool may not be created in a way that it provides
additional benefits in compensation for work already performed. For example, if a
city employee had exhausted his sick leave and taken unpaid sick leave before the
city created a sick leave pool, he could not draw on the pool as a means of
reimbursement for those past unpaid sick leave days. The sick leave pool may,
however, be used to increase an employee’s potential           sick leave benefit
prospectively. See Attorney General Opinion JM-1160 (a county policy to become


         ?he civil service law under consideration was formerly codiied as article l269m. V.T.C.S. It
is now codiied as chapter 143 of the Local Government Code. The sick leave provision was formerly
section 26 of article 12&n, V.T.C.S.; the relevant provisions arc now found in section 143.045 of the
Local Government Code.

         *The Texas Supreme Court reversed the court of appeals on another issue that is not relevant
to this opinion. See Austin Fire&Police Departments v. City ofAustin, 22.3 S.WSd 845, S47 (Tcx. 1950).




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Honorable    Gonxalo Barrientos    - Page 4     ( DM-12 9 1




effective prospectively that grants additional sick leave to’county employees does
not violate article III, section 53). Once a sick leave pool is established, this
employee benefit becomes a term of employment with the city, and employees
receive its benefits prospectively, as’compensation   for work performed after it is
established. Byrd, 6 S.W.2d 738.

         When an employee contributes to the sick leave pool some of his sick leave
accumulated before the pool was established, he is not receiving an additional
benefit or additional compensation for work performed in the past.             On the
contrary, he voluntarily relinquishes the right to use those days of paid sick leave
himself and subjects them to the conditions the city has developed for use of the sick
leave pool. Thus, the employee’s contribution to the pool of sick leave acquired
before the pool was established will not cause the city to violate article III, section
53. Whether other terms of a particular sick leave pool are consistent with article
III, section 53 of the Texas Constitution must be decided on a case-by-case basis.


                                   SUMMARY

                 A home rule city has authority to create a “sick leave pool”
            to which municipal employees may contribute              previously
            acquired sick leave and from which other employees may draw if
            they are ill but have no sick time left. If the benefits of the sick
            leave pool are available only prospectively, it will not violate
            article III, section 53 of the Texas Constitution.        When an
            employee contributes      to the sick leave pool sick leave
            accumulated before the pool was established, he is not receiving
            additional compensation for work previously performed; thus,
            he is not involved in a violation of article III, section 53 of the
            Texas Constitution.




                                                      DAN      MORALES
                                                      Attorney General of Texas




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