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The Attorney General of Texas
October 12, 1983
JIM MATTOX
Attorney General
Supreme Court Building Mr. John S. Cargile Opinion No. ~~-76
P.0.Box12546
Austin. TX. 7671% 2546
Chairman
5121475.2501 Texas State University System Re: Whether faculty member at
Telex 9101674-1367 Board of Regents Southwest Texas State University
Telecopier 5121475.0266 505 Sam Houston Building may take vacation leave or lump
Austin, Texas 78701 sum payment for accrued vacation
714 Jackson, Suite 700
leave
Dallas. TX. 75202.4506
2141742.6944 Dear Mr. Cargile:
You advise us that a tenured faculty member at Southwest Texas
4624 Alberta Ave., Suite 160
El Paso, TX. 79905.2793
State University has accrued unused vacation time as a university
91515333464 employee serving in an administrative capacity. You anticipate that
the person will remain a member of the faculty at Southwest Texas
State University and that, from time to time, the person will continue
- -1001 Texas, Suite 700 to be employed part-time as a faculty member and part-time as an
buston, TX. 77002-3111
administrative employee. You ask our opinion as to whether this
7131223-5666
person is entitled either to be paid in a lump sum for the unused
vacation time or to take vacation leave with pay.
606 Broadway. Suite 312
Lubbock. TX. 79401.3479 We believe that the status of a faculty member under the facts
6061747-5236 presented to us makes the member ineligible to receive a lump sum
payment of accrued vacation time but eligible to take certain vacation
4309 N. Tenth, Suite B leave without deduction in salary.
McAllen, TX. 76501-1665
5121662-4547 In 1975, the legislature provided by general law that a state
employee continuously employed for at least six months is entitled to
200 Main Plaza. Suite 400
be paid in a lump sum for accrued vacation time when the employee
San Antonio, TX. 76205.2797 resigns or is dismissed or separated from state employment. V.T.C.S.
5121225-4191 art. 6252-8b. See Acts 1981, 67th Leg., ch. 875, art. V, 87(a), at
3799 (current biennial Appropriations Act); Senate Bill No. 179, Acts
1983, 68th Leg., art. V, 98, at V-34 of the Conference Committee
An Equal Opportunity/
Affirmative Action Employer
Report (Appropriations Act for 1983-1985 biennium). As a faculty
member, the person is an employee with a contractual relationship
governed by state law, the Rules and Regulations of the Board of
Regents of the Texas State University System, and the terms of his
appointments for specific fiscal years. The fact that the contract of
a faculty member who will return the following year provides a period
of appointment for nine months that does not include the summer months
does not constitute a termination or separation of state employment
during the summer months.
p. 322
Mr. John S. Cargile - Page 2 (JM-76)
In OUT opinion, the word "appointment" as used in the
appropriations act, contemplates only the periods during which
particular services are required to be rendered. Although neither
required by the contract of employment to teach or to serve in an
administrative capacity during the summer nor entitled to a salary for
services rendered during that period, a faculty member remains an
employee with certain obligations and benefits. These benefits
include coverage for medical and hospital insurance, the use of
university facilities (offices, libraries, etc.), and other benefits
generally available to faculty members. In our opinion, a faculty
member who will be returning for the fall semester is not separated
from state employment during the summer and, therefore, is not
eligible for payment of accrued vacation time in a lump sum. See
Attorney General Opinions MW-282 (1980); H-1096 (1977); M-1279 (1972);
M-1252 (1972).
Vacation time of state employees is payment for services rendered
and salary within the meaning of that part of article 6813b, V.T.C.S.,
that provides "all salaries of all . . . State employees . . . shall
be in such sums or amounts as may be provided for by the Legislature
in the biennial Appropriations Act." See Attorney General Opinion
M-1252. The right of a state employee at-y given time to a vacation
from his duties without deduction in salary depends on the provisions
of the current biennial appropriations act. Beginning with the act
passed in 1981, the legislature excepted faculty with appointments of
less than 12 months at institutions of higher education from the
provision authorizing paid vacations for "employees of the state."
The general appropriations acts for the fiscal years beginning
September 1, 1981 and ending August 31, 1985 provide the following:
Other than faculty with appointments of less than
twelve months at institutions of higher education,
employees of the State shall, without deduction in
salary, be entitled to a vacation in each fiscal
pal-.
Acts 1981, 67th Leg., ch. 875, art. V, 97a, at 3798; Senate Bill No.
179, Acts 1983, 68th Leg., art. V, 98, at V-34 of the Conference
Committee Report. Each appropriation act specifies the hours of
vacation accrued each month by state employees on the basis of their
years of state employment and the maximum hours they may carry forward
from one fiscal year to the next fiscal year. In addition, each of
those acts defines a "regular employee" of an institution of higher
education as one who is employed to work at least 20 hours per week
for a period of at least four and one-half months, excluding certain
students, and provides that only regular employees of such
institutions are eligible for paid vacation.
Accordingly, when a person is employed by Southwest Texas State
University as an administrative employee, either on a full-time basis
or on a part-time basis that qualifies the person to be a "regular
p. 323
Mr. John S. Cargile - Page 3 (JM-76)
--,
employee," he is an employee of the state within the meaning of the
current appropriation act whether or not he is simultaneously a member
of the faculty. As such, he is entitled to accrue and carry forward
vacation leave and to take a vacation from his administrative duties
without deduction in his administrative salary. nowever, a faculty
member at Southwest Texas State University with a teaching appointment
of less than 12 months for the fiscal year does not accrue vacation in
that capacity and is not entitled to use leave accrued as an
administrative employee to take a paid vacation from his duties as a
faculty member.
SUMMARY
Under current appropriation acts, a member of
the faculty at an institution of higher education
who, as an administrative employee, qualifies for
the accrual of vacation leave is entitled to take
a vacation from his administrative duties without
deduction in his administrative salary. A faculty
member who has a teaching appointment of less than
12 months during the fiscal year and who will
return the following year to the institution of
higher education has not interrupted his state
-, c employment and is not entitled to a lump sum
payment for accrued vacation leave. .
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Nancy Sutton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
David Brooks
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 324