The Attorney General of Texas
November 23, 1971
J,OHNL.HILL
Mornay Gensfal
Honorable George W. McNiel Opinion Non. H-1096
State Auditor
Sam Houston State Office Building Re: Whether a short
P. 0. Box 12067 period between employment
Austin, Texas 7871.1 by two different state
agencies constitutes a
Dear Mr. McNiel: break in state employment.
You have asked whether a short period between employ-
ment by two different state agencies constitutes a break
in state employment sufficient to require payment for accrued
leave.
An employee who resigns, is dismissed or is separated
from state employment is entitled to receive payment for
any unused vacation time he has accumulated. General
Appropriations Act, Acts 1975, 64th Leg., ch. 743, at 2949.
Persons whose'employment with the state ended September 1,
1975, orlater were also entitled to be paid for one-half
of their accumulated sick leave. General Appropriations
Act, Acts 1975,~ch. 743, at 2850. This policy was termi-
nated on August 31, 1977. and persons leaving state employ-
ment after that date are not entitled to be paid fcr any
percentage of their unused sick leave.
The Legislature's termination of the policy of payments
for sick leave created financial incentives to terminate
state employment before August 31, 1977, with the result
that similarly situated employees were treated differently
depending on the time and method by which they left their
state jobs. While we question the policy which permits
radically different treatment of employees o,n the largely
fortuitous circumstance of how and' when an individual leaves
the State's employ, we are not at liberty to ignore or add
to the statutory language adopted by the Legislature.
Your question involves an employee who resigned from
the State Auditor's Office on June 36, 1977, and had secured
employment with another state agency beginning eleven days
P. 4497
Honorable George W. McN'iel - Paw 2 (x-1096)
later. Article V, section 7e of both the 1975 and 1977
Appropriations Act indicates how an employee's leave is han-
dled when he transfers from one state agency to another. That
section provides:
A state employee who transfers directly
from one State agency to another, shall
be given credit by the receiving agency
for the unused balance of this accumu-
lated vacation and sick leave, provided
that his employment with the State is
uninterrupted.
Article V, 9 7e, at 2851 (1975) and at V-33 (1977).
Thus the issue becomes whether the e.leven day break between
the two jobs constituted an interruption in state employment.
"Termination of employment" has been defined as "the com-
plete severance of the relationship of employer and employee."
Pan American Life Insurance Co. v. Garrett, 199 S.W.Zd 819, 821
(Tex. Civ. App. -- El Paso 1946, no writ). Such severance must
occur by the-positive act of either employer or employee.
Edwards v. Equitable Life Assurance Society, 177 S.W.Zd 574,
577 (KY. Ct. App. 1944); Here the employee resigned and specif-
ically asked that his resignation be treated as a termination.
There was no attempt to seek leave without pay or to remain on
the payroll until the employee's vacation time was exhausted.
It is~well established that an employee's unused vacation time
does not extend his term of employment, and that ~payment for
accrued annual leave "has no significance in determinina Lhe
date" of separation from employment. Funderburk v. Metropolitan
Life Insurance Co., 146 So.Zd 710, 715 (La. Ct. App. 1962); Wyatt
v. Security Benefit Life Insurance Co., 263 P.2d 243. 246 (Kan.
1955). See Mutual Life Insurance Co. of New York v. Presbyterian
Hospital- Dallas, 503 S.W.Zd 870, 874 (Tex. Civ. App. -- Dallas
1973, writ ref'd n.r.e.1.
In our opinion, this eleven day break in'state employment
entitles the state employee to payment for accrued leave, without
regard to the amount'of leave to which the employee is entitled
at the time of his separation, and without~regard to whether the
employee subsequently resumes state employment. Accordingly, we
believe that a short period between employment by two different
state agencies constitutes~an interruption in state employment
sufficient to require payment for accrued leave.
P. 4498
I
: - .’
Honorable George W. McNiel - Page 3 (H-1096)
SUMMARY
A short period between employment by two
different state agencies constitutes an
interruption in state employment sufficient
to require payment for accrued leave.
Very truly yours,
Attorney General of Texas
APPROVED:
DAVID H. KENDALL, First Assistant
C. ROBERT H~?l'fi.Chairman
Opinion Comittee
jst
p. 4499
Untitled Texas Attorney General Opinion
Combined Opinion