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The Attorney ,General of Texas
MARK WHITE
Attorney General
Eonorable W. E. Snelson, Chairman Opinioa No. lm-427
5upfelm coull BUlldltlQ
P. 0. Box 12548 Senate Education Committee
*ustIn. lx. 78711 Texas State Senate Re: Sick leave entitlement of
5%?l475.2591 State Capitol Building. 128-C state amployees
T&X 9101874-1367 Austin, Texas 78711
r8lacopl.w 51214750266
Dear Senator Snelson:
lw7 MSb St., suite 1400
oaIIas. TX. 75201 You have requested our opinion regarding an employee terminated
2w742a944 by the State Commission for the Blind on June 25. 1979, while the
employee was drawing sick leave. In Attorney General Opinion MW-247
4524 Alberla Ave. suite 150
(198O)b.we said that this employee was not entitled to be paid a lump
El Paw. lx. 79905 sum &d compensation for that portion of his accrued sick leave vhich
91- remained unused at the time of his discharge.
The pertinent provisions regarding sick leave in effect at the
1220DalIa AVO,SullO zoz
Noueton.TX. 77002 tima the aforesaid employee was terminated were found in the
71- Appropriations Act for the 1970-1979 biennium at page V-32. See Acts
1977, 65th Leg. ch. 072 at 2699, 3146. They read in part:
w5 Brosdw*y,suits 312
Lubhock,Tx. 79401
b. Employees of the State shall, without
eml747-522a deduction in salary, be entitled to sick’ leave
subject to the following conditions:
4309 N. Tenth.Suite 8 An employee will eata sick leave entitlement
McAlleq TX. 78.501
512a82a7
beginning on the first day df employment vith the
State and terminating on the last day of duty.
200 Mein Piaza,SUIC UK) Sick leave entitlement shall be earned at the
!%n Antonio. TX. 78205 rate of eight (8) hours for each month or fraction
51212254191
of a month empl&ant. and shall accumulate with
the unused amount of such leave carried forward
each month. Sick leave accrual shall terminate on
the last day of duty.
Sick leave with pay may be taken when
sickness, injury. or pregnancy and confinement
prevent. the employee's performance 06 duty or when
a member of his immediate family is actually ill.
An employee who must be absent from duty because
of illness shall notify his supervisor or cause
p. 1452
. him to be notified of that fact at the earliest
practicable time. (Emphasis added).
Under the provisions of the Appropriations Act, in our opinion,
if an employee is not prevented by illness from performing his duty at
the time he is terminated, the right to use accumulated sick leave
never accNes and the termination of employment extinguishes the
contingent right. See Attorney Ganeral Opinion MW-247 (19&O). Cf.
City of Aouaton v. Caldwell. 582 S.W.Zd 494 (Tex. Civ. App. - Beaumont
1979, no writ); Patton v. Governing Board of San Jacinto School
District, 143 Cal. Rptr. 593 (Cal. App. 4th. 1978). Even if 8 state
employee is genuinely ill and using accumulated sick leave, we do not
think he is iarnunefrom involuntary termination and removal from the
payroll. But if he is terminated after his right to use his
accumulated sick leave has accrued. the employing agency remains
liable for the value of the accrued but not-yet-exhausted leave time
(or the portion applicable. depending on the duration of the illness).
See Vangilder v. City of Jackson. 492 S.W.2d 15 (Ho. App. - St. Louis
1973). Cf. Rduc. Code 113.905 (termination of school employees on
diaabilit~eave); Attorney General Opinion R-352 (1974).
Turning to your specific question , we advise that if an ill state
employee subject to the General Appropriations Act for fiscal years
1978-1979 is involuntarily terminated while on recommended extended
sick leave ,fora bona fide illness that prevents him from performing
his duty, he.16 entitled to be paid for his accrued. unexhausted sick
leave time or, should the duration of the illness not exceed the
unexhausted time. for the portion applicable. In Attorney General
Opinion m-247 (1980). the word eaCCNede is used in a coloquial.
non-technical sense. Cf. Attorney General Opinion U-1075 (1972)
(vacation benefits accrua. Rovever. it otherwise correctly states
the general ~rule applicable to state employees terminated at a time
when the right to use accumulated sick leave entitlement has not
vested and we reaffirm it. A different question is presented here.
SUl4MARY
An ill state employee subject to the General
Appropriations Act for fiscal years 1978-1979 who
is involuntarily terminated while on recommended
extended sick leave for a bona fide illness that
prevents him from performing his duty is entitled
to be paid for his accrued. unexhausted sick leave
time or, should the duration of the .illnesa not
exceed the unexhausted time. for the portion
applicable.
=Q
MARK WHITE
Attorney General of Texas
p. 1453
. JOHN W. FAINlZRr JR.
First Aaeistant Attorney General
RICRARD E. GRAY III
Executive Assistant Attorney General
Prepared by BNCS Youngblood
Assistant Attorney General
APPROVED:
OPINION CoHnIlTRE
Susan L. Garrison, Chairman
Jon Bible
BNce Youngblood
p. 1454