Untitled Texas Attorney General Opinion ( 1976 )

January16,1976
The Honorable Bevington Reed Opinion No. H-766
Commissioner, Coordinating Board
Texas College h University System Re: Whether Appropriation
P. 0. Box 12788 Act provision concerning
Austin, Texas 78711 payment for one-half
accumulated sick leave
upon termination of.
employment is applicable
to institutions of higher
education.
Dear Commissioner Reed:
You have requested our opinion on several questions
regarding the provision of the current General Appropriations
Act, Acts 1975, 64th Leg., ch. 743, p.2417, which for the
first time provides for payment of one-half of an employee's
accumulated sick leave upon termination of employment. The
General Appropriations Act, provides in article V, section
7(b) at pp. 2849-2850:
b. Employees of the State shall,
without deduction in salary, be entitled
to sick leave subject to the following
conditions:
Sick leave entitlement shall be
earned at the rate of eight (8) hours
for each month or fraction of a month
employment, and shall accumulate with
the unused amount of such leave carried
forward each month.
Sick leave with pay may be taken
when sickness, injury, or pregnancy
and confinement prevent the employee's
performance of duty or when a member
of his immediate family is actually
ill. An employee who must be absent
from duty because of illness shall
notify his supervisor or cause him to
be notified of that fact at the earliest
practicable time.
p. 3232
,/
. .
The Honorable Bevington Reed - page 2 W-.766)
PC 38 eligible for accumula,;edsick
leave with pay during a continuous
period of more than three (3) working
days, an employee absent due to illness
shall send to the administrative head
of his employing agency a doctor's
certificate showing the cause or
nature of the illness, or some other
written statement of the facts concerning
the illness which is acceptable to
such administrative head.
Upon return to duty after sick
leave the employee concerned shall,
without delay, complete the prescribed
application for sick leave and submit
the same through proper channels to
the appropriate approving authority
for his consideration.
Exceptions to the amount of sick
leave an employee may take may be
authorized by the administrative head
or heads of any agency of the State
provided such exceptions are authorized' '
on an individual basis after a review
of the merits of such particular case.
A statement of any such authorized
exceptions or the reasons for them
shall be attached to the State agency's
duplicate payroll voucher for the
payroll period affected by such authorized
exceptions.
p. 3233
The Honorable Bevington Reed - page 3 (H-766)
Your first question asks:
Is the rider provision in Fection 7(b)
of Article V of the present General
Appropriation Bill, authorizing payments
to employees for accumulated sick leave,
applicable to the institutions of higher
education?
The statute clearly requires that all state employees,
upon separation, be paid for one-half of their accrued sick
leave. No exception is created for employees of state
institutions of higher education. The exception in the
preceding paragraph applies only to "[tlhe foregoinq provision
regarding sick leave" and is not applicable to any subsequent
Drovision. It is well settled that, where the lansuase of a
statute ia plain and clear, it must.be given effecf ai
written.Thp&*Yr 254 S.W.2d 98 (Tex.Sup.
1952). usurp the function of the Legisla-
ture by reading into a statute a-provision which is not
contained therein. Goldman v. Torres, 341 S.W.Zd 154 (Tax.
Sup. 1960). It is therefore our opinion that the provision
of the General Appropriations Act providing for payment of
one-half of an employee's accumulated sick leave upon termi-
nation of employment is applicable to state institutions of
higher education.
Your second question is:
May the governing board of an institu-
tion of higher education limit the maximum
number of days of sick leave which can be
accumlated by an employee for either pay-
ment purposes in the case of termination
or actual use in the case of illness?
p. 3234
.
The Honorable Bevington Reed - page 4 (H-766)
.>b &i-d ii1response to your firzi question, the Leqis-
lature has established a policy of payment for a portion of
unused sick leave. The language of the Appropriations Act
indicates that this policy applies to institutions of higher
education, even though these institutions have some flexibility
in establishing general sick leave policies. Thus, if an
institution of higher education had established sick leave
policies prior to September 1, 1975, it may continue to
enforce those policies and to promulgate additional policies
of a similar nature. These policies might include limitations
on the maximum amount of sick leave which can be accrued.
However, the institutions may not thwart the purpose of the
Act by establishing two different types of sick leave, such
as sick leave accrued for use in case of illness and sick
leave for payment purposes on termination of state employment.
Your third and fourth questions ask:
(3) Are employees of an institution
of higher education who have been
hired in connection with projects
funded by grants or contracts and paid
from the funds made available pursuant
to such grant or contract entitled to
be paid for accumulated sick leave
even though the grant or contract does
not allow or provide for such expenditure?
(4) Are the institutions of higher
education required to make payments
for accumulated sick leave to employ-
ees of the institutions' auxiliary
enterprises who terminate employment?
The provision'of the General Appropriations Act which
authorizes payment for one-half of accrued sick leave is
applicable to "state employees." Thus, if an individual is
a "state employee" he will be entitled to the benefits of
this portion of the Appropriations Act. Since the institu-
tions of higher education about which you inquire are agencies
of the State, their employees are state employees. Your
third question presupposes that the individuals whose salaries
p. 3235
. .
The Honorable Bevington Reed - page 5 (H-766)
_ ,-i: .nith :he proceeds of grant: or contracts are employees
of the institution. As such they are entitled to the benefits
of the Appropriations Act provision relating to payment for
sick leave. Auxiliary enterprise employees are also employees
of the institutions and are similarly entitled to the Act's
benefits. - See Attorney General Opinion H-456 (1974).
With regard to your last question, where you ask us to
suggest options available to the institutions of higher
education if funds are not available for sick leave payments,
we express no opinion. -See Attorney General Opinion H-211
(1974).
SUMMARY
The provision of the General
Appropriations Act providing for payment
of one-half of an employees' accumulated
sick leave upon termination of employment
is applitable to state institutions of
higher education. The governing boards
of certain institutions may limit the
maximum number of days of sick leave
which an employee'may accumulate, but it
may not draw a distinction between the
accrual of sick leave for payment purposes
in the event of separation and accrual
for actual use in case of illness.
Employees of institutions of higher
education are state empl6yees entitled
to the benefits of the sick leave
payment provisions of the Appropriations
Act.
Very truly yours,
Attorney General ,of Texas
p. 3236
I..
.
The Honorable Bevington Reed - page 6 (H-766)
Opmion Committee
jwb
p. 3237