October 12, 1973
Honorable Rbb&t~S. ~Caiv&t ~Op@ibn No. H-126
Comptroller of Public Accountr
State of Taxae.: Re: WI-+&her Houec Bill 139.
Atietin. ‘78774 ’ 63rd Leg., authbrisei
“payment of acciued vaca-
tion pay to an employee
who reparatee or ie
leparkted from ltate
Dear Mr: C’veit:~~ ,&mployment
You~have reqdirted our &pinion tion&nizig the iighte of employee8
separated from, state. em@loyment to b@ paid for accrued vacation time,
under House Bill 139, ofithe 63rd Legialature, The General Appropriations
Act for fiecal~yeare ~1974and 1975.
Your mpecifi’c question aeke:
“Can thi~e department legally pay’ dn.itiployee
for vacation time duly accrued on the date he aepar-
ater from State employment for any unured vacation
&titlement undei’*e .current Appropriation Bill?”
Exc’~~~‘f~r’iirticle;‘bZSi-8i.~ V.T. C. S., which appiie.e to’vication
ti& ac&uxi&itad at tl&+at~‘of a ‘et&e employde. there ii nongeneral law
.provLdicg fi$$ $?+~.ohtim~ ~foi all state employeer. Article ‘6252-8. V.T.CS,
givee to hotirly etiplo$eer, continuously emiloytid’by the State for 6 months
or more, whatever Mcition rights may be granted to konthly employees.
Whatever’vacatioti iighte do exiet arc,found’in Article V of the various
appropriation acts. Prior to fircal 1973, there wae no authority for an em-
ployee to be paid a lump rum for accrued vacation bti the termination d hie
“’ employment, and it wao l uggeeted in Attorney~General Opinion M-1075 that
"all reeignation#,dirmierale o rleparatione from State employment murt be
The Honorable Robert S. Calvert, page 2,(H-126)
accomplirhed effective on a date which will permit the employee to be :
paid for hir accumulated vacation. It
Although that opinion and Attorney General Opinion No. 1252 (1972)
as well, apeak of the right to accrued vacation time as @kernted, ” we do
not believe it ie vemtkd in the urual sense of that word. Rather, we are
of the opinion that the right to accrued vacation time ia analogour to the
right to retirement benefit@ under one of the several plans authorized by
the various legirlaturea. Am to theme, the Supreme Court bar raid:
“In our opinion, the rule that the right of a
penrioner to receive monthly payment0 from the
peaiion fund after retirement from service, or
after his right to participate in the fund ha8 accrued,
ir predicated upon the anticipated corLinuance of
existing lawn, and ie auborainate to the right of the
Legirlkure to abolish the pension eyetern, or dimi-
nish the accrued benefitr of pensioner6 theretinder.
1~ undoubtedly the mound rule to be adopted. ”
City of Dallaa v. Trammell, 101 S. W. 2d 1009, 1013(Tex. 1937); and see
Board of Managers of Harris County Hoop. Dief:.v~.Penaicin:Board. 449
S. W. td 33 (Tex. 1970).
The ,right# of an employee to .be paid for accrued vacation’:timc must
depend, therefore, upon the state of the law at the time of hia eeparation
from state employment. Aa to permom who die while employed by the
State, the right* of their eatat& are determined~by Article 6252-8a, V.T.CS
On the other hand, except insofar aa Article 6813b, V. T. C. S., makes the
salary prov$aions of the bieonial appropriationa acta the general law, there
im no over-all rtatute~providing for vacation time for living employees.
In the Appropriation Acefor fiscrl’l972 (Senate Bill II, Regular Ses-
sion, 62nd Legimlature), it was provided in Article V, 0 7 (p. V-35) that,
“No employee of the State shall.be granted terminal annual or vacation
leave subsequent to the effective day of the employee’s resignation, dis-
missal, or separation from State employment. I’ Attorney Gemrrl Opinion
p. 610
The Honorable Robert S. Calvert, page 3 (H-126)
M-1075 (1972),found this language to be unambiguous and luggented, as
we have quoted above, ‘that the effective date of the termination be post-
poned until a time sufficient to include the accruid vacation.
The Approprtation Act for fiscal 1973 (Senate Bill~~l,~ 3rd ‘Called
Seseioa, 62nd Legislature), provided in $ 7,,~at p. ,V-34, “A State em-
~@lbyee who resigni,’ his’dirmiraed, or separrtes fro& State employment
shall be entitled to be paid for ill vacition time duly accrued. I’ (imphasis
added) This proviiion wan the rubject of Attorney General Opinions
M-1252, M-1279, M-1280, M-12@ (1972). . Opinion ‘1252~held that because
of the language. “shall be entitle’d fo~~be paid, ‘I a State einployec who was
separated and had nbt been.Zully paid~ for all vacation time to whiclitie
_~ .,
.was entitled, had tiot been fully paid’for ~a11iervices ,rendered land was
entitled to reCeive :any balance due him’tipdn~termination af his employment.
The 63rd Legislature, in~the Genera Appropriations Act for fiscal
1974 and 1975, again rewrote 5 7 of Article V and the pertinent language
with Eeference to accrued vacation timg is now. “A States employee who
rcsigne, is dis&&sid. or scpa+Btdd from Sta%C.employment shall be en-
,.
titled to all vacation time duly.ticcrued. ” There is n6 provision there or
eleewhere in the Abpropriatibn Act tir’thc penerrl’stitutes of the State that
an employee. upon l eparation, shall ‘be paid for ,a’ccrued time.
In construing thC”imgtiie of Article V. 5 7. we are not at liberty
to arsume that the worde “to be paid” were omitted through inadvertance.
To the iontiary., we must astnune that they were ititentionally omitted
and that something in the history of the application of the 1973 Act caueed
tbe Legidatur~ to change -its mind.
It is the general rule that your office may not iraue warrants for an
item for which there has been no appropriation. National,Bircuit Co. v.
Sclte, 135 S. W. 2d 687 (Tex. 1940); State v. Angelins County. 150 S. W. td
379 (Tex. 1941); Bullock v. Calvert, 480 S. W. 2d 367 (Tex. 1972). This is
true even though an expenditure,;,may be exprer~sly:called for by a general
law. See, for imtance. Attorney General Opinion C-579 (1966) hblding tht,
even though the general law provided for fees for certain witnesses, ln the’
absence of an appropriation for thoee feea, they could not be paid.
p. 611
s .
The Honorible Robert S. Calvert, page 4 (H-126)
Am we construe the current wording of 5 7, it now provides that an
employwe is entitled to ?ime, ” not to pay, and, in any event, no funds
are appropriated to pay a petson who is-no longer an employee for accrued
vacation time.
We are of the opinion, therefore. that the office of the Comptroller of
Public Accounts (except in camemof death) may not legally pay an employee,
under the current Appropriations Act. for unused vacation time duly accrued
on the date he separates from’state employment. Apparently the Legisla-
ture intended that vacation time be used for vacations, and’not to supplement
income. The change in the ‘law, as we interpret it, should encourage emplby-
ees to take their vacations ‘aa they accrue. If that ,ic.hot pfictic*l. sqwwd0n
ihpul&be effective :b~Cr dit&‘,whicb,wiU psrxtiit tht e+ploy.e:e tb,Tm~rirf hts :“;
ic&iiiulated vacation. time prior to him separation.
SUMMARY
There’im neither any general law nor any appro-
priationin the Approprtrtion Act for 1974-1975 autho-
rizing the payment of money to a state employee who
iemigns, is dimmiased or otherwise separates from
State employment (except in casem’of death) in lieu of
accrued but ynusecj vacation time.
‘APPROV$D:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 612