The Attorney General of Texas
December 20, 1978
JOHN L. HILL
Attorney General
Honorable Henry Wade Opinion No. H- 12 9 7
Criminal District Attorney
Dallas County He: Constitutionality of article
Sixth Floor, Records Building 1041b, Code of Criminal Proce-
Dallas, Texas 75202 dure, relating to vacations for
jailers.
Dear Mr. Wade:
You have requested our opinion concerning the construction of article
104lb of the Code of Criminal Procedure which provides:
Vacations for jailers, jail guards and matrons
Every member of the sheriff’s department assigned
to duty as jailer, jail guard, or jail matron at any
county jail in any city of more than twenty-five
thousand (25,000) inhabitants shall be allowed fifteen
(15) days vacation in each year with pay, not more than
two (2) members to be on vacation at the same time;
provided that the provisions of this Section of this Act
shall not be applied to any such jailer, jail guard, or
jail matron in any city of more than twenty-five
thousand (25,000) inhabitants, unless such member
shall have been regularly employed as such jailer, jail
guard, or jail matron for a period of at least one year.
Each preceding Federal Census shall determine the
population.
The sheriff having supervision of the county jail
shall designate the days upon which each jailer, jail
guard, or jail matron shall be allowed to be on
vacation.
The sheriff having supervision of the county jail in
any such city who violates any provision of this Article
shall be fined not less than Ten Dollars ($10) nor more
than One Hundred Dollars ($100).
p. 51iZ
Honorable Henry Wade - Page 2 (H-1297 )
The basic purpose of this statute is to give a statutory vacation period to jail
guards, jailers and jail matrons who work in the county jail of a larger metropolitan
area. Your question involves the conflict which arises in larger counties where it is
impossible to provide each jailer, jail guard or jail matron with 15 days vacation and
to schedule the vacations so that no more than two are on vacation at any one
time. This situation occurs when there are at least 35 employees who are entitled
to vacation during the year. We believe the clear intent of the legislature was to
require that a sufficient number of jail personnel is always present to insure
adequate security. It is doubtful that the legislature contemplated that there
might be counties employing a jail staff which is so large that it is impossible to
provide 15 days vacation for each employee unless more than two are on vacation at
the same time. We believe that the statute must be interpreted to reflect the
legislative intent and that each jail guard, jailer or jail matron who has been
employed for at least one year is entitled to an annual vacation of 15 days even
though it may result in more than two employees being on vacation at the same
time. The sheriff should insure that the legislative intent is fulfilled by arranging
the vacations so that adequate security is always provided. See generally V.T.C.S.
art. 5115.1,S 9(a)(3).
You ask how the 15 day period is to be calculated. A Court of Civil Appeals
has construed a statute very similar to 1041b which provided that members of fire
departments in cities of more than 30,000 inhabitants were to be given 15 days
vacation. In the dispute over whether or not vacation time had been given, the
court reasoned that a day of vacation is a dav off from work which would otherwise
be a normal working day but for the vacation. Coffman v. City of Wichita Falls,
374 S.W.2d 798 (Tex. Civ. App. - Fort Worth 1964, writ ref’d). This definition
excludes legal holidays and other non working days from being included in the 15
day vacation period to be given jail guards. See also Attorney General Opinion V-
1072 (1950).
SUMMARY
Jail guards who have regularly been employed as such for
one year receive 15 days vacation from work. The
prohibition against more than two guards on vacation at the
same time is ineffective if impossible to comply with.
P. 5113
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Honorable Henry Wade - Page 3 (B-l2g7)
APPROVED:
C. ROBERT HEATH, Chawman
Opinion Committee
P. 5114