The Attorney General of Texas JIM MATTOX December 23, 1985 Attorney General Supreme Court Building Mr. W. N. Kirby Opinion No. JN-4'07 P. 0. Box 12548 Commissionerof Education Austin, TX. 78711. 2548 Taxas EducationAgency Re: Allowable credit for prior 51214752501 201 East Eleventh Street state serviceof student employees Telex 9101874.1367 Telecopier 512/47M266 Austin, Texas 78701 Dear Mr. Kirby: 714 Jackson, Suite 700 Dallas, TX. 752026506 You inquire about the effect of the definition of a regular 214i742.8944 employee in article V, section 7(d), of the 1979 General Appropria- tions Act, and In,each subsequentAppropriationsAct, on length of 46.24 Alberta Ave.. Suite 160 service computations for the longevity pay and vacation leave of a El Paso, TX. 79905.2793 state employee wL!:hprevious employment at an institutionof higher 9151533-3484 education in a position that required student status as a condition for employment. The riders in questionprovided the following: 1001 Texas. Suits 700 Housto”, TX. 77002.3111 For institutions'andagencies of higher educa- 7l3l223.5886 tion, a regular employee is defined as one who is employed to work at least 20 hours per week for a period of at least four and one-halfmonths, ex- 806 Broadway. Suite 312 Lubbock. TX. 79401.3479 cluding students employed in positions which 8081747.5238 require student status as a conditionfor eatploy- ment. Only regular employeesof institutionsand agencies of higher educationshall be eligible for 4309 N. Tenth. Suite B McAllen. TX. 78501.1685 paid vacation and leave as providedherein. 5121662.4547 -See Acts 1985, 69th Leg., ch. 980, art. V, §8d, at 7766. 20x3Main Plaza, Suite 400 We conclude that the exclusionof studentsemployed in positions San Antonio, TX. 782052797 51212254191 that require student status from the definitionof a regular employee at institutions and agencies of higher education renders such employeesineligdble for paid vacation while so employed. The length An Equal OppOrtUnitYI of servicecomputationsthat determinethe amount of longevitypay and Attirmative Action Employer vacation leave that an employee eligible for those benefits is entitled to rece:tveare provided by article 6813d, V.T.C.S., and by articleV, section 8a of the General AppropriationsAct, respectively neither of which suggests that the legislatureintendedto exclude the described employment from such computations. V.T.C.S. art. 6813d; Acts 1985, 69th Leg., ch. 980. art. V. 58a. at 7764. Longevity psg for state employees is authorized by general statutorylaw. The statute providesthat p. 1862 Mr. W. A. Kirby - Page 2 (JM-483):. each state employee coveredby the Position Classi- fication Act of 1961. each line item or exempt state employee, each regular full-time hourly employee of the state, and each regular full-time nonacademic employee of a state institution of higher education is entitled to longevitypay of a maximum of $4 pe,rmonth for each year of service as an employee of the state up to and including 25 years of servicr,.. . . V.T.C.S. art. 6813d. not whether a person is an employeewho is The issue before us j.6, eligible to receive earoed longevity pay under that statute. The issue is the meaning of tinephrase "for each year of service as an employee of the state" for the purpose of computing the amount of longevity pay, if any, that an eligible employee has earned. Eligibility is not determined by the same criteria as that used to compute the amount of ao eligible employee's longevity pay. Cf. Attorney General Opinion YW-282 (1980) (relating to eligibilityof employeesto receive longevitypay). Article 6813d neither defines nor qualifies the meaning of "an employee of the state." It is our opinion that the language of the statute is unqualified.snd does not exclude any class of state employees. See Attorney SeneralOpinion MW-100 (1979) (prior service as nationalFrd techniclencreditedas service as an employee of the state for purposes of longevity pay under article 6813d). Cf. Attorney General Opinion E-684 (1975) (interpretingphrase uemploy= of the state" iu an approp,riations act for purpose of accrual of sick leave). Where the legislaturemakes no exceptionto the provisions of a statute. the uresumntion ,tsthat it intended no exceptions. It is well settled that except.ionsand restrictionsin statutes are not ordinarilyimplied. --See Smith v. Aenger, 226 S.W.2d 425, 435 (Tex. 1950); Spears V. City of L;anAntonio, 223 S.W. 166, 169 (Tex. 1920); Stubbs v. L~ey's Heir!!.,253 S.W.Zd 312, 313 (Tex. Civ. App. - Eastland 1952, writ ref'd n.r.e.). Nothing in article 6813d suggests that the legislatureintended to exclude employmentat an institution of higher education in a position requiring student status from the computationof the amount of longevitypay under that statute. It also is well settled that an appropriationsact may detail, limit, or restrict the use of funds appropriatedby the act, but a rider attachedto the General AnoronriationsAct mav not conflictwith general law. See Jessen Asso&tes, Inc. v. Bullock, 531 S.W.2d 593, 600 (Tex. 1975);Hoore V.-She ard, 192 S.W.2d 559 (Tex. 1946); State v. Steele, 57 Tex. 203--is+ Attorney General Opinions JM-343 (1985);M-1199 (1972). 3:nauthorizingthe use of appropriatedfunds p. 1863 ’ Mr. W. 1. Kirby- Page 3 (~~-407) for paid vacations for state employees, the riders in question have excluded employees at incltitutions of higher education who are not regular employees as defined by the riders. Thus, employees at institutions of higher etlucationin positions that require student status as a conditioa of employmentmay not receive paid vacations. Student employees' eligil~ilityfor paid vacations is a different subject from the computationof the amount of longevitypaymantsunder article 6813d, and the rider is not in conflictwith article 6813d. General statutory law does not specify paid vacation for state employees,but riders to appropriationsacts have authorizedthe use of funds appropriatedby the acts for state employees'vacations. A rider in the General Ap?:copriations Act for the current biennium provides,in pertinentpart, that [olther than faculty with appointmentsof less than twelve months at j.nstitutionsof higher educationand other than instructionalemployeeswith contractsfor periods of less than twelve months at the Texas School for the Blind and the Texas School for the Deaf, employees of the state shall, without deduction in salary be entitle<.to a vacation in each fiscal year. Such entitlement shall be earned in accordancewith the followingschedule: Msximum Hours to Carry For- ward From One Fiscal Year EmployeesWith Total Hours Accrued to Next State EmploymentOET Per Month Fiscal Year 0 but less than 2 years 7 168 2 but less than 5 years 8 192 5 but less than 10 years 9 216 10 but less than 15 years 10 240 15 but less than 20 years 12 288 20 and over years 14 336 An employee wi:L earn vacation entitlementbegin- ning on the first day of employmantwith the state and terminating ou the last day of duty. Vacation en- titlement is accrued at the applicable rate cited above. . . . (Emphasisadded). Acts 1985, 69th Leg., ch. 980, art. V. §8a, at 7764. Again, the issue be:ioreus is not whether ao employee of an institutionof higher education who is employed in a position that requires student status 1'seligible to earn vacation entitlement. p. 1864 Mr. u. H. Kirby - Page 4 ,(.lM-.4V7J '. Article V, section gd of the same act expressly provides that only of higher educationare eligible for regular employeesof insti,:utions vacation leave and exclui& such employees from its definition of regular employee. The lsa,ueIs the criteria to be used in computing the amount of.vacationentitlementthat is earned by a state employee who is eligible for paid vacation. The rider provides that the rate at which vacation entitlsment is earned is determined by the employee's "total state employment"without expresslyexcepting any state employment from the 'computation.An employeeof a college or university who does not qualify as a regular employee eligible for paid vacation because c11e position requires student status is, nevertheless,in the emplo:naent of the state. It is our opinion that if the legislature intended to limit longevity of state employment for the purpose of computingvacation entitlementby excluding c.ertainstate employment,the legislature expresslywould have so provided. Cf. Attorney GeneralOpinion H-941 (1977) (time on active mi'litaryduty included within longevity of employmentfor purposes of determiningamount of vacation entitlement but the accrual of vacatica.leave while on active duty not allowed). In answeringquestions concerningthe accrual of the proper amount of vacation leave by state lzmployeesunder prior appropriationsacts, this office stated that [ilf there be any doubt or ambiguity in the statute calling for constructiou,it should be resolved in fav'xcof the beneficiary under the well settled maon which demands a liberal constructionin :Iavorof encouragingState service by State employelzs. Attorney GeneralOpinion M-%4 (1971). SUMMARY Computations'b.ssedon length of service as an employee of the state to determine the amount of longevitypay and vacation leave that an employee eligible for thorlobenefits is entitledto receive are determined by article 6813d, V.T.C.S.. and article V, section 8a of the current General Appropriations ,41-t,respectively, and not by articleV. section Ed of the current act. Article V, section Ed rtnders an employee ineligiblefor paid vacation if the person is employed in a position that requires student status at an institutionof higher education as a conditionof the employment. Neither article 6813d, V.T.C.S., nor article V, sfcction8a of the General Appro- priationsAct exclude such employmentfrom length p. 1865 I t4r.W. H. Kirby - Page 5 (.I?+407).~ of service computationsthat determine the amount of an employee'slongevitypay and vacation leave. JIM MATTOX Attorney General of Texas JACK HIGHTOWBR First AssistantAttorney Gsaueral MARY KELLER ExecutiveAssistantAttorrq General ROBERT GRAY Special AssistantAttorney General RICK GILPIN Chairman,Opinion Comnitte,: Preparedby Nancy Sutton AssistantAttorney General p. 1866