The Attorney General (
JIM MATTOX
Attorney General
Mr. William P. Daves, Jr.
Supreme Court Building
Chairman
P. 0. Box 12546
Austin. TX. 76711. 2546
State Board of Insurance lle: Whether the commissioner
51214752501 1110 San Jacinto of insurance is an "employee"
Telex 9101674.1367 Austin, Texas 78706 or "officer" for purposes of
Telecopier 51214750266 article 6252-8b, V.T.C.S.
1607 Main St.. Suite 1400
Dear Mr. Daves:
Dallas. TX. 75201.4709
2141742.6944 You ask:
4624 Alberta Ave.. Suite IM)
Is a commissioner of insurance, appointed
El Paso. TX. 799052793 pursuant to the provisions of article 1.09 of the
9151533.3464 Texas Insurance Code, an 'employee' or an
'officer' of the state of Texas for purposes of
r
accrual of and payment for annual leave time under
.-LO Dallas Ave.. Suite 202
HOUS,O”. TX. 77002.6966
the provisions of article 6252~8b, V.T.C.S.?
7131650-0666
Article 6252-8b. V.T.C.S., provides in pertinent part:
606 Broadway. Suite 312 Section 1. A state employee who resigns, is
Lubbock. TX. 79401.3479
dismissed, or separated from state employment
6061747.5238
shall be entitled to be paid in a lump sum for all
vacation time duly accrued at the time of
4309 N. Tenth. Suite 6 separation from state employment; provided the
McAkn, TX. 76501.1665 employee has had continuous employment with the
5121662.4547
state for six months. (Emphasis added).
200 Main Plaza. suite 400 In your letter to this office, you stated that Attorney General
San Anlonw,. TX. 76205-2797 Opinion MU-517 (1982) prompted your question. In that opinion, this
5121225.4191 office held that the commissioner of education is not entitled to
accrue vacation time under article V. section 7 of the General
An Equal Opportunityi Appropriations Act, and that he is therefore ineligible for any
Affirmative Action Employer payment under article 6252-8b. The opinion reasoned that both article
V. section 7 of the General Auorooriations Act and article 6252~8b
apply only to "state employees,';t and
* that under Aldine Independent
School District v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). which
holds that an individual is a "state officer" if he exercises any
sovereign function of government for the benefit of the public and
largely independent of the control of others, the commissioner of
r education is not a "state employee."
P. a5
Mr. William P. Daves, Jr. - Page 2 (JM-19)
Your question caused us to reexamine the reasoning and
conclusions of Attorney General Opinion MW-517 and come of the prior
opinions upon which it relied. We now conclude that these opinions
are at least partially erroneous.
In reaching its conclusions, Attorney General Opinion MW-517
relied upon prior attorney general opinions. Attorney General Opinion
M-1279 (1972) was the first such opinion to hold explicitly that
article V, section 7 of the General Appropriations Act does not apply
to "state officers." This opinion pointed out that under the 1971
appropriations act, Acts 1971, Sixty-second Legislature, chapter 1047.
article V, section 7, at 3796. only "annual employees of the State"
accrued vacation time. Then, without defining the relevant terms or
offering any reasoning, the opinion simply asserted that "state
officers" are outside the ambit of article V, section 7. In so doing,
it impliedly took the position that "state officer" and "state
employee" are mutually exclusive categories.
Attorney General Opinions M-1280 (1972) and H-715 (1975) were the
next two opinions to conclude that article V. section 7 does not apply
to "state officers." Neither opinion reached this conclusion after
independent analysis, however; on the contrary, both simply restated
the conclusion reached in Attorney General Opinion M-1279 without
questioning or reexamining it. By the time that Attorney General
Opinion MW-517 was decided, therefore, this conclusion, having been
stated in at least three opinions issued during a ten-year time span,
had come to be regarded as a virtual truism, even though no reasoning
or authorities had ever been marshalled to support it.
We have now reexamined this conclusion, and we conclude that it
is incorrect.
Three years before Attorney General Opinion M-1279 was issued,
the legislature enacted article 6252-8a, V.T.C.S. Acts 1969, 61st
Leg., ch. 217. at 633. The article was amended in 1971. Acts 1971.
62nd Leg., ch. 106, Il. at 866. Since 1971. this article has provided
in relevant part as follows:
Section 1. 'Employee' as used in this Act
means any appointed officer or employee in a
department of the State who is employed on a basis
or 8 position normally requiring not less than 900
hours per year, but shall not include members of
the Legislature or any incumbent of an office
normally filled by vote of the people; [and others
not relevant here].
Sec. 2. Upon the death of a state employee,
the state shall pay his estate for all of the
p. 86
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Mr. William P. Daves. Jr. - Page 3 (JM-19)
employee's accumulated vacation leave and for
one-half of his accumulated sick leave. The
payment shall be calculated at the rate of
compensation being paid the employee at the time
of his death.
Attorney General Opinion M-1279 did not completely overlook
article 6252-8a, but we believe that it did fail to attach sufficient
importance to that article. Then, as now, the subject of article V,
section 7 of the General Appropriations Act was "Employees Vacations
and Leaves," including sick leave. The subject of article 6252-8a
was, and is, the entitlement of the estate of a deceased "state
employee" to payments for that employee's accrued but unused vacation
and sick leave. In our opinion, because article V, section 7 and
article 6252-8a dealt with the same general subject, viz., the
vacation and sick leave benefits of a "state employee,"Attorney
General Opinion M-1279 should have read the two provisions together
and concluded that the definition of "state employee" set forth in the
latter provision should also apply to the former. In this context, we
note that it hardly seems likely that the legislature which enacted
article 6252-8a intended to afford the estates of certain deceased
state employees an entitlement to something that did not exist. This
conclusion follows if one concludes that some individuals who are
P included in the definition of "state employee" set forth in article
6252-8a are not "state employees" within the meaning of article V,
section 7 of the General Appropriations Act and therefore cannot
accrue vacation time under that provision.
We now turn to article 6252-8b. enacted in 1975. The language of
this provision is virtually identical to the language of a portion of
article V, section 7 of the 1971 appropriations act with which
Attorney General Opinion M-1279 was concerned. We have already said
that, for purposes of this section, "state employee" should be defined
as it is defined in article 6252-8a. Because the language of this
portion of article V, section 7 and the language of article 6252-8b
are essentially the same, we believe that "state employee," within the
meaning of the latter provision, was intended to have, and has, the
same meaning.
We therefore conclude that the article 6252-8a definition of
"employee" also applies to article V, section 7 of the General
Appropriations Act and to article 6252-8b, V.T.C.S. The terms "state
officer" and "state employee" are, in other words, not necessarily
mutually exclusive. An individual may be an "officer" under Aldine
Independent School District v. Standley. m, and still be an
"employee" within the meaning of these provisions. To the extent that
they hold or indicate otherwise, Attorney General Opinions M-1279,
M-1280, H-715, MW-517, and any others are overruled.
p. 87
’ I
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Mr. William P. Daves, Jr. - Page 4 (JM-19)
In our opinion, our conclusion is. for several reasons, the most
reasonable one. First, it means that three legislative enactments
which deal with the same general subject apply to the same
individuals. Second, it accounts for the legislature's failure to
define "state employee" when it enacted article 6252-8b. Finally, it
avoids the anomalous result that would inevitably occur if we were to
conclude that decisions as to whether a particular individual is
within article V. section 7 and article 6252-8b should turn on whether
he is an "officer" or "employee" under the Aldine test. Under this
test, some administrative heads of agencies may be in one category,
and some in the other. Just as we do not believe that the legislature
intended that some "officers" would be within the ambit of article
6252-8a but outside the scope of article V, section 7 and article
6252-Eb, we do not think that it intended the applicability of the
latter two provisions to turn solely upon the nature of the duties and
responsibilities of the individual involved.
The remaining question concerns the application of these
provisions to the commissioner of insurance. Under article 1.09 of
the Insurance Code. the commissioner is appointed by the State Board
of Insurance. In our opinion, he is within the article 6252-8a
definition of "employee." Accordingly, he is entitled to accrue
vacation time under article V. section 7 of the appropriations act,
and to payments for accrued but unused time under article 6252-8b.
SUMMARY
The commissioner of insurance is entitled to
accrue vacation time under article V, section 7 of
the General Appropriations Act and to receive
payments for accrued but unused leave time under
article 6252-8b. Attorney General Opinions
M-1279, M-1280, H-715 and MW-517 are overruled to
the extent that they
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
p. 88
Mr. William P. Daves, Jr. - Page 5 (JM-19)
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Charmaine Rhodes
p, 89