Honorable Robert S. Calvert Opinion No. M-1252
Comptroller of Public Accounts
State Finance Building Re: Must a State employee who
Austin, Texas 78701 resigns, is dismissed, or
is separated from State
employment be paid for all
duly accrued vacation time,
Dear Mr. Calvert: and related questions.
Your request for an opinion reads as follows:
"I hereby request your official opinion in
answer to the following questions:
"1 . Must a State employee who resigns, is
dismissed, or separated from State employment be
paid for all duly accrued vacation time?
"a. If the above answer is in the affirma-
tive, when should the payment be made?
"2. Must the salary of a line-item employee
be paid solely from a line-item appropriation or
may he be paid in whole or in part from monies
which the Legislature has prohibited in whole or
in part to be paid for salary or wages?
"a. Sec. 10. LIMITATIONS ON USE OP OTHER
EXPENSE FUNDS FOR PAYING SALARIES AND WAGES. Funds
appropriated in Articles I, II, and III of this
Act, or for the Central Education Agency in Article
IV of this Act, in items designated for consumable
supplies and materials, current and recurring
operating expense or capital outlay shall be ex-
pended only for items set out in the Comptroller's
Manual of Accounts, Expenditure Classification,
effective Xovember 1, 1965, as amended, and num-
bered from i0 CO 19 for 'consumable su;?lies and
Lmater;dlS,' 2C rl?zoug!:25 for 'currerit and recurring
operating expense,' and 60 to 69 for 'capital
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Hon. Robert S. Calvert, page 2 '(M-1252)
outlay,' It is further provided that such terms
shall not include expenditures for personal
services including salaries and wages, unless
the language of those items explicitly authorizen
such use."
Article 6252-8a, Vernon's Civil Statutes, provides in
part:
"Sec. 2. Upon the death of a state employee,
the state shall pay his estate for ali of the em-
ployee'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.
"Sec. 3. Funds appropriated for salaries to
the department or agency for which the employee
worked shall be used in making payments provided
for by this Act.”
Section 7 of Article V of the current General Appropriation
Act provides in part at page V-34:
"If a State employee transfers directly from
one State agency to another, he shall be entitled
to credit with the newly employing agency for
his accumulated but unused vacation entitlement,
provided that his employment with the State i8
uninterrupted. A State employee who remions&
is dismissed, or separate6 from State employment
shall be entitled to be paid for all vacation
time duly accrued." (Rmphasie added.)
The underlined portion of the above quoted rider did not
appear in the General Appropriation Act beginning September 1,
1971; instead it was provided:
"If a State employee transfers directly from
one State agency to another, he shall be entitled
to credit with the newly employing agency for his
accumulated but unused vacation entitlement, pro-
vided that his employment with the State is un-
interrupted. NC empioyee of the State shall be
craritec term;nal annsal or vacation leave sub-
seauent to the effective day of the employee's
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Hon. Robert S. Calvert, page 3 (M-1252)
resignation, dismissal, or separation from State
employment." (Emphasis added.)
Accrued vacation entitlement is a vested right of State
employees and of their estates. Attorney General's Opinion M-1075
(1972) and authorities cited therein.
It is now specifically provided that a State employee
who resigns, is dismissed or separates from State employment "shall
be entitled to be paid" for all vacation time duly accrued. There-
fore it is our opinion that an individual who is no longer on a
State payroll has not been fully paid all the compensation for
services rendered the State that he is legally entitled to untii
such individual has been paid for all vacation time which has
accrued to such individual.
In answer to your first question you are therefore ad-
vised that a State employee who resigns, is dismissed or separated
from State employment must be paid for all duly accrued vacation
time. Such payment is due and payable on the date the State em-
ployee resigns, is dismissed, or is separated from State employment,
which should be submitted on the monthly payroll for the month
in which the separation will occur; i.e., employment terminated
midnight December 31st, payment is submitted on the December pay-
roll.
Article 6813b, Vernon's Civil Statutes, provides in part:
"From and after the effective date of this
Act, all salaries of all State officers and State
employees, including the salaries paid any in-
dividual out of the General Revenue Fund, shall
be in such sums or amounts as may be provided for
by the Legislature in the biennial Appropriations
Act. . . ."
Since payment for all duly accrued vacation time is payment
for services rendered, it is our opinion that such payment consti-
t'utes salaries within the meaning of Article 6813b. Therefore suck
payment may only be made from funds made available for expenditure
by the Legislature in the Appropriations Act for salaries; i.e.,
Attorney General Department appropriation, payment for accrued va-
cz::cn for Assistant Attorney General, may be paid from Item 6 or .;t-
rczr,ey General 's Operating Fund of the current Appropriations Bill.
Er.zlo:,eesfor .whom line item appropriations are made may be paid f;r 6:
-,.-..l-- vacation time from other salary funds. You are accoi-+..~--
--.,--ii-e; vi; q-3 _,
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lion.Robert S. Calvert, page 4 (M-1252)
advised that such payment is subject to the limitation provided
in Section 10 of Article V of the current General Appropriations
Act relating to limitations on use of other expense funds for
paying salaries and wages quoted in your request.
SUMMARY
A State employee who resigns, is dismissed,
or separated from State employment must be paid
for all duly accrued vacation time and such pay-
ment may be made from any appropriated funds
available for the payment of salaries or wages.
ORD C. MARTIN
General of Texas
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Marvin Sentell
James Quick
Bob Gauss
Bob Flowers
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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