Could a Texas university faculty member receive a lump-sum payout or use vacation earned while also serving as an administrator?

Texas AG Opinion JM-76: Faculty and Administrator Vacation Leave

Plain-English summary

JM-76 addressed a tenured Southwest Texas State University faculty member who had earned unused vacation while working in an administrative role and expected to continue dividing time between faculty and administrative work.

"You advise us that a tenured faculty member at Southwest Texas State University has accrued unused vacation time as a university employee serving in an administrative capacity."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

"You anticipate that the person will remain a member of the faculty at Southwest Texas State University and that, from time to time, the person will continue to be employed part-time as a faculty member and part-time as an administrative employee."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

The opinion concluded that the employee could not receive a lump-sum payout because a returning faculty member was not separated from state employment during the summer. A nine-month appointment described the service period but did not end the continuing employment relationship.

"The fact that the contract of a faculty member who will return the following year provides a period of appointment for nine months that does not include the summer months does not constitute a termination or separation of state employment during the summer months."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

"[A] faculty member who will be returning for the fall semester is not separated from state employment during the summer and, therefore, is not eligible for payment of accrued vacation time in a lump sum."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

Vacation earned in a qualifying administrative position could be accrued, carried forward, and used for an absence from administrative duties without a reduction in administrative salary. It could not be used as paid leave from faculty duties under a teaching appointment of less than 12 months.

"[H]e is entitled to accrue and carry forward vacation leave and to take a vacation from his administrative duties without deduction in his administrative salary."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

"[A] faculty member at Southwest Texas State University with a teaching appointment of less than 12 months for the fiscal year does not accrue vacation in that capacity and is not entitled to use leave accrued as an administrative employee to take a paid vacation from his duties as a faculty member."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why was the faculty member not entitled to a lump-sum vacation payout?

The lump-sum statute applied when a state employee resigned, was dismissed, or otherwise separated. The opinion said a faculty member returning in the fall remained employed through the summer even without teaching duties or summer salary.

"[A] state employee continuously employed for at least six months is entitled to be paid in a lump sum for accrued vacation time when the employee resigns or is dismissed or separated from state employment."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

"In our opinion, a faculty member who will be returning for the fall semester is not separated from state employment during the summer."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

Did the nine-month appointment end state employment during summer?

No. JM-76 treated "appointment" as the period when particular services were required, not as the full duration of the employment relationship.

"In our opinion, the word 'appointment' as used in the appropriations act, contemplates only the periods during which particular services are required to be rendered."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

"Although neither required by the contract of employment to teach or to serve in an administrative capacity during the summer nor entitled to a salary for services rendered during that period, a faculty member remains an employee with certain obligations and benefits."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

What continuing benefits supported that conclusion?

The opinion identified medical and hospital insurance, access to university facilities, and other benefits generally available to faculty members.

"These benefits include coverage for medical and hospital insurance, the use of university facilities (offices, libraries, etc.), and other benefits generally available to faculty members."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

When could a part-time administrative employee qualify for vacation leave?

JM-76 said the person qualified when the administrative position was full-time or part-time work meeting the appropriations act's definition of a regular employee. That definition required at least 20 hours per week for at least four and one-half months, subject to exclusions.

"[E]ach of those acts defines a 'regular employee' of an institution of higher education as one who is employed to work at least 20 hours per week for a period of at least four and one-half months, excluding certain students, and provides that only regular employees of such institutions are eligible for paid vacation."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

"Accordingly, when a person is employed by Southwest Texas State University as an administrative employee, either on a full-time basis or on a part-time basis that qualifies the person to be a 'regular employee,' he is an employee of the state within the meaning of the current appropriation act whether or not he is simultaneously a member of the faculty."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

Could administrative leave be used for time away from teaching duties?

No. The opinion separated the two capacities and said leave accrued as an administrator could not provide paid vacation from faculty duties.

"[A] faculty member . . . with a teaching appointment of less than 12 months for the fiscal year does not accrue vacation in that capacity and is not entitled to use leave accrued as an administrative employee to take a paid vacation from his duties as a faculty member."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

Background and statutory framework

The Board of Regents asked whether the dual-role employee could receive a lump sum for unused vacation or take paid vacation leave.

"You ask our opinion as to whether this person is entitled either to be paid in a lump sum for the unused vacation time or to take vacation leave with pay."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

The former lump-sum statute tied payment to resignation, dismissal, or separation. The appropriations acts excluded faculty appointments of less than 12 months from the general paid-vacation provision.

"Other than faculty with appointments of less than twelve months at institutions of higher education, employees of the State shall, without deduction in salary, be entitled to a vacation in each fiscal year."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

The opinion also treated vacation as payment for services and salary governed by legislative appropriation.

"Vacation time of state employees is payment for services rendered and salary within the meaning of that part of article 6813b, V.T.C.S."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

Holding

"Under current appropriation acts, a member of the faculty at an institution of higher education who, as an administrative employee, qualifies for the accrual of vacation leave is entitled to take a vacation from his administrative duties without deduction in his administrative salary. A faculty member who has a teaching appointment of less than 12 months during the fiscal year and who will return the following year to the institution of higher education has not interrupted his state employment and is not entitled to a lump sum payment for accrued vacation leave."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

Citations and references

Statutes discussed by JM-76:

• "V.T.C.S. art. 6252-8b" Official PDF
• "the current biennial Appropriations Act" Official PDF
• "article 6813b, V.T.C.S." Official PDF

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0076
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0076.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

JIM MATTOX
Attorney General

October 12, 1983

Mr. John S. Cargile
Chairman
Texas State University System
Board of Regents
505 Sam Houston Building
Austin, Texas 78701

Opinion No. JM-76

Re: Whether faculty member at Southwest Texas State University may take vacation leave or lump sum payment for accrued vacation leave

Dear Mr. Cargile:

You advise us that a tenured faculty member at Southwest Texas State University has accrued unused vacation time as a university employee serving in an administrative capacity. You anticipate that the person will remain a member of the faculty at Southwest Texas State University and that, from time to time, the person will continue to be employed part-time as a faculty member and part-time as an administrative employee. You ask our opinion as to whether this person is entitled either to be paid in a lump sum for the unused vacation time or to take vacation leave with pay.

We believe that the status of a faculty member under the facts presented to us makes the member ineligible to receive a lump sum payment of accrued vacation time but eligible to take certain vacation leave without deduction in salary.

In 1975, the legislature provided by general law that a state employee continuously employed for at least six months is entitled to be paid in a lump sum for accrued vacation time when the employee resigns or is dismissed or separated from state employment. V.T.C.S. art. 6252-8b. See Acts 1981, 67th Leg., ch. 875, art. V, §7(a), at 3799 (current biennial Appropriations Act); Senate Bill No. 179, Acts 1983, 68th Leg., art. V, §8, at V-34 of the Conference Committee Report (Appropriations Act for 1983-1985 biennium). As a faculty member, the person is an employee with a contractual relationship governed by state law, the Rules and Regulations of the Board of Regents of the Texas State University System, and the terms of his appointments for specific fiscal years. The fact that the contract of a faculty member who will return the following year provides a period of appointment for nine months that does not include the summer months does not constitute a termination or separation of state employment during the summer months.

In our opinion, the word "appointment" as used in the appropriations act, contemplates only the periods during which particular services are required to be rendered. Although neither required by the contract of employment to teach or to serve in an administrative capacity during the summer nor entitled to a salary for services rendered during that period, a faculty member remains an employee with certain obligations and benefits. These benefits include coverage for medical and hospital insurance, the use of university facilities (offices, libraries, etc.), and other benefits generally available to faculty members. In our opinion, a faculty member who will be returning for the fall semester is not separated from state employment during the summer and, therefore, is not eligible for payment of accrued vacation time in a lump sum. See Attorney General Opinions MW-282 (1980); H-1096 (1977); M-1279 (1972); M-1252 (1972).

Vacation time of state employees is payment for services rendered and salary within the meaning of that part of article 6813b, V.T.C.S., that provides "all salaries of all . . . State employees . . . shall be in such sums or amounts as may be provided for by the Legislature in the biennial Appropriations Act." See Attorney General Opinion M-1252. The right of a state employee at any given time to a vacation from his duties without deduction in salary depends on the provisions of the current biennial appropriations act. Beginning with the act passed in 1981, the legislature excepted faculty with appointments of less than 12 months at institutions of higher education from the provision authorizing paid vacations for "employees of the state." The general appropriations acts for the fiscal years beginning September 1, 1981 and ending August 31, 1985 provide the following:

Other than faculty with appointments of less than twelve months at institutions of higher education, employees of the State shall, without deduction in salary, be entitled to a vacation in each fiscal year.

Acts 1981, 67th Leg., ch. 875, art. V, §7a, at 3798; Senate Bill No. 179, Acts 1983, 68th Leg., art. V, §8, at V-34 of the Conference Committee Report. Each appropriation act specifies the hours of vacation accrued each month by state employees on the basis of their years of state employment and the maximum hours they may carry forward from one fiscal year to the next fiscal year. In addition, each of those acts defines a "regular employee" of an institution of higher education as one who is employed to work at least 20 hours per week for a period of at least four and one-half months, excluding certain students, and provides that only regular employees of such institutions are eligible for paid vacation.

Accordingly, when a person is employed by Southwest Texas State University as an administrative employee, either on a full-time basis or on a part-time basis that qualifies the person to be a "regular employee," he is an employee of the state within the meaning of the current appropriation act whether or not he is simultaneously a member of the faculty. As such, he is entitled to accrue and carry forward vacation leave and to take a vacation from his administrative duties without deduction in his administrative salary. However, a faculty member at Southwest Texas State University with a teaching appointment of less than 12 months for the fiscal year does not accrue vacation in that capacity and is not entitled to use leave accrued as an administrative employee to take a paid vacation from his duties as a faculty member.

SUMMARY

Under current appropriation acts, a member of the faculty at an institution of higher education who, as an administrative employee, qualifies for the accrual of vacation leave is entitled to take a vacation from his administrative duties without deduction in his administrative salary. A faculty member who has a teaching appointment of less than 12 months during the fiscal year and who will return the following year to the institution of higher education has not interrupted his state employment and is not entitled to a lump sum payment for accrued vacation leave.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Nancy Sutton
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
David Brooks
Susan Garrison
Jim Moellinger
Nancy Sutton