Can a Texas city let employees donate sick leave to coworkers who run out?

Plain-English summary

A state senator asked whether a home rule city could set up a "sick leave pool," a fund of donated sick time that employees contribute to and that other employees can draw from when they are ill but have run out of their own sick leave, without running afoul of article III, section 53 of the Texas Constitution. The Attorney General answered that a home rule city has the authority to create such a pool, and that doing so does not violate section 53 as long as the benefits are limited to the future.

The opinion started with the source of a home rule city's power. Home rule cities have full power of self-government and look to the Legislature not for grants of authority but only for limits on what they may do. They may generally set the compensation and conditions of employment of their employees, including sick leave, so a home rule city could adopt whatever charter provision or ordinance it needed to set up a voluntary sick leave pool.

The constitutional limit came next. Article III, section 53 bars the Legislature, and any county or city it authorizes, from granting extra compensation, a fee, or an allowance to a public servant after the service has been rendered. Sick leave is a form of compensation within that provision. So a city cannot run a sick leave pool in a way that hands an employee an added benefit for work already performed. The opinion drew on cases applying section 53 to the firefighter and police civil service sick-leave rules, which held that sick-leave benefits could not be granted retroactively. Applying that principle, the opinion explained that an employee who had already taken unpaid sick days before the pool existed could not later draw on the pool to be reimbursed for them. But the pool could increase an employee's potential sick-leave benefit going forward, because once established the pool becomes a term of employment and employees earn its benefits through work performed after it is set up. And an employee who contributes sick leave accrued before the pool existed is not getting extra pay; he is voluntarily giving up the right to use those paid days himself. So neither the prospective operation of the pool nor a contribution of previously accrued leave violates section 53. Whether any other particular term of a given pool complies had to be judged case by case.

Currency note

This opinion was issued in 1992. 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. The statutes referenced here have been amended and recodified since 1992, so confirm the current constitutional and statutory provisions before relying on any rule described.

Background and statutory framework

Home rule cities possess the full power of self-government and may not adopt a charter provision or ordinance inconsistent with the constitution or general laws of the state. Tex. Const. art. XI, § 5; see Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975); Forwood v. City of Taylor, 214 S.W.2d 282 (Tex. 1948). Such cities therefore look to acts of the Legislature only for limitations on their powers, not for grants of authority. Burch v. City of San Antonio, 518 S.W.2d 540, 543 (Tex. 1975); Forwood, 214 S.W.2d 282. They are generally authorized to establish the compensation and conditions of employment of their employees, including sick leave. See Byrd v. City of Dallas, 6 S.W.2d 738 (Tex. 1928); Attorney General Opinion H-1303 (1978). The opinion noted in a footnote that article 6252-5e, V.T.C.S., required each state agency to establish a sick leave pool for employees suffering a catastrophic illness or injury, and that a home rule city which had adopted chapter 143 of the Local Government Code (civil service protection for police and firefighters) would have to comply with the sick-leave provision in Local Government Code section 143.045.

Article III, section 53 provides that the Legislature shall have no power to grant, or authorize a county or municipal authority to grant, any extra compensation, fee, or allowance to a public officer, agent, servant, or contractor after service has been rendered or a contract performed in whole or part. Tex. Const. art. III, § 53; see also id. § 44 (similar provision applicable to the state). Sick leave is a form of compensation or allowance within that provision. See Ward v. City of San Antonio, 560 S.W.2d 163 (Tex. Civ. App.—San Antonio 1977, writ ref'd n.r.e.). The section bars a city from running a sick leave pool in a way that grants an added benefit for work already performed. Attorney General Opinion JM-1160 (1990).

The opinion looked to two civil service sick-leave cases for guidance. In Austin Fire & Police Departments v. City of Austin, 224 S.W.2d 337 (Tex. Civ. App.—Austin 1949), aff'd in part and rev'd in part, 228 S.W.2d 845 (Tex. 1950), the court of appeals held that entitlement to accumulate sick leave under the new civil service statute began on the statute's effective date, not the employee's date of hire, reasoning that "[s]ince retroactive sick leave benefits would have the effect of granting extra allowance to a public servant, after the services had been rendered, such an act would not be constitutional." 224 S.W.2d at 339 (citing Tex. Const. art. III, § 53). The Texas Supreme Court agreed the provision applied only from the statute's effective date, which made it unnecessary to reach the constitutional question. In Ward, after a 1975 amendment removed the 90-day cap on accumulation, the court held retiring employees could not be paid for more than 90 days of unused sick leave accrued before the amendment's effective date, because paying for more "would be in violation of Art. 3, § 53 of the Texas Constitution." 560 S.W.2d at 166.

From those principles, the opinion concluded that a pool may not be created so as to provide additional benefits as compensation for work already performed (an employee could not draw on the pool to be reimbursed for unpaid sick days taken before the pool existed), but the pool may increase an employee's potential sick-leave benefit prospectively. Once established, the pool becomes a term of employment, and employees receive its benefits as compensation for work performed after it is set up. Byrd, 6 S.W.2d 738. An employee who contributes previously accrued sick leave is not receiving an additional benefit; he voluntarily relinquishes the right to use those paid days himself and subjects them to the pool's conditions, so the contribution does not cause the city to violate section 53. Whether other terms of a particular pool comply had to be decided case by case.

Common questions

Can a Texas city run a donated sick-leave program?
Under this opinion, a home rule city can. The opinion concluded a home rule city has authority to create a voluntary sick leave pool by adopting whatever charter provision or ordinance is needed, because home rule cities may set the conditions of their employees' employment.

Does the constitution's extra-pay ban block a sick-leave pool?
Not if the pool runs forward. The opinion read article III, section 53 to bar only extra compensation for work already done, so a pool whose benefits are available prospectively is permissible. A city could not let an employee use the pool to get paid back for unpaid sick days taken before the pool existed.

If I donate sick leave I already earned, is the city giving me extra pay?
No, under the opinion's reasoning. An employee who contributes previously accrued sick leave gives up the right to use those paid days, rather than receiving an added benefit, so the donation does not trigger a section 53 problem.

Does this opinion settle every sick-leave pool design?
No. The opinion said whether other particular terms of a given pool are consistent with article III, section 53 must be decided on a case-by-case basis, and it expressly did not address civil service employees covered by chapter 143 of the Local Government Code.

Citations

• Tex. Const. art. XI, § 5
• Tex. Const. art. III, § 53
• Tex. Const. art. III, § 44
• V.T.C.S. art. 6252-5e
• V.T.C.S. art. 1269m
• Local Gov't Code § 143.045
• Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975)
• Forwood v. City of Taylor, 214 S.W.2d 282 (Tex. 1948)
• Burch v. City of San Antonio, 518 S.W.2d 540 (Tex. 1975)
• Byrd v. City of Dallas, 6 S.W.2d 738 (Tex. 1928)
• Ward v. City of San Antonio, 560 S.W.2d 163 (Tex. Civ. App.—San Antonio 1977, writ ref'd n.r.e.)
• Austin Fire & Police Dep'ts v. City of Austin, 224 S.W.2d 337 (Tex. Civ. App.—Austin 1949), aff'd in part and rev'd in part, 228 S.W.2d 845 (Tex. 1950)
• Attorney General Opinion H-1303 (1978)
• Attorney General Opinion JM-1160 (1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0129
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0129.pdf

Original opinion text

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

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 17, 1992

Honorable Gonzalo Barrientos
Chairman
Committee on Nominations
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. DM-129

Re: Whether a home rule city may, consistent with article III, section 53 of the Texas Constitution, create a "sick leave pool" of sick leave contributed by employees for use by employees who have exhausted their sick leave (RQ-287)

Dear Senator Barrientos:

Your question involves the authority of a municipality to create a "sick leave pool" to which municipal employees may presently and in the future contribute previously acquired sick leave time and from which other employees may draw if they are ill but have no sick time left. We are informed that you are specifically concerned with the powers of a home rule city, and we will limit our discussion accordingly. You ask whether a home rule city may create such a "sick leave pool" without offending article III, section 53 of the Texas Constitution. Before reaching the constitutional issue, we will consider the legislative power of a home rule city to implement a sick leave pool.

Home rule cities possess the full power of self-government, provided that they may not adopt a charter provision or ordinance that is inconsistent with the constitution or general laws of the state. Tex. Const. art. XI, § 5; see Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975); Forwood v. City of Taylor, 214 S.W.2d 282 (Tex. 1948). Thus, home rule cities look to acts of the legislature not for grants of authority but only for limitations on their powers. Burch v. City of San Antonio, 518 S.W.2d 540, 543 (Tex. 1975); Forwood, 214 S.W.2d 282. Home rule cities are as a general matter authorized to establish compensation and conditions of employment of their employees, including sick leave. See Byrd v. City of Dallas, 6 S.W.2d 738 (Tex. 1928); Attorney General Opinion H-1303 (1978). A home rule city therefore has authority to implement a voluntary sick leave pool for its employees by adopting any charter provision or ordinance necessary to establish it.

[Footnote: Article 6252-5e, V.T.C.S., requires each state agency to establish a sick leave pool to benefit employees who suffer a catastrophic illness or injury.]

We next address article III, section 53 which provides as follows:

The Legislature shall have no power to grant, or to authorize any county or municipal authority to grant, any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered, or a contract has been entered into, and performed in whole or in part; nor pay, nor authorize the payment of, any claim created against any county or municipality of the State, under any agreement or contract, made without authority of law.

Tex. Const. art. III, § 53; see also id. § 44 (similar provision applicable to state).

Sick leave is a form of compensation or an allowance within this provision. See Ward v. City of San Antonio, 560 S.W.2d 163 (Tex. Civ. App.—San Antonio 1977, writ ref'd n.r.e.). Article III, section 53 of the Texas Constitution bars a city from implementing a sick leave pool in a way that grants an additional benefit to its employees for work already performed. Attorney General Opinion JM-1160 (1990).

The courts have addressed the constitutionality under article III, section 53 of sick leave provisions of the firemen's and policemen's civil service statute. Ward, 560 S.W.2d 163; Austin Fire & Police Dep'ts v. City of Austin, 224 S.W.2d 337 (Tex. Civ. App.—Austin 1949), aff'd in part and rev'd in part, 228 S.W.2d 845 (Tex. 1950). Although these decisions concern specific provisions of law, they can provide some general guidance about the question before us.

[Footnote: If a home rule city has adopted chapter 143 of the Local Government Code, providing civil service protection for policemen and firemen, it must comply with the code provision on sick leave. See Local Gov't Code § 143.045. Since you do not inquire about civil service employees we will not consider whether their inclusion in a voluntary sick leave pool would be consistent with chapter 143 of the Local Government Code.]

In Austin Fire & Police Departments, firemen and policemen sought a declaratory judgment construing the sick leave provisions of the newly enacted civil service statute, which allowed firemen and policemen to accumulate up to 90 days sick leave and to be paid on retirement for accumulated sick leave. The plaintiffs claimed that firemen and policemen employed before the effective date of the civil service statute were entitled to accumulate sick leave from their date of employment, not merely from the effective date of the statute. The court of appeals held that the entitlement to sick leave benefits under the statute began with the effective date of the statute, not the date of employment. "Since retroactive sick leave benefits would have the effect of granting extra allowance to a public servant, after the services had been rendered, such an act would not be constitutional." 224 S.W.2d at 339 (citing Tex. Const. art. III, § 53). The Texas Supreme Court agreed with the court of appeals that the sick leave benefits provision applied only from the effective date of the statute, stating that this construction of the statute made it unnecessary to reach constitutional questions.

[Footnote: The civil service law under consideration was formerly codified as article 1269m, V.T.C.S. It is now codified as chapter 143 of the Local Government Code. The sick leave provision was formerly section 26 of article 1269m, V.T.C.S.; the relevant provisions are now found in section 143.045 of the Local Government Code.]

[Footnote: The Texas Supreme Court reversed the court of appeals on another issue that is not relevant to this opinion. See Austin Fire & Police Departments v. City of Austin, 228 S.W.2d 845, 847 (Tex. 1950).]

A subsequent case resulted from a 1975 amendment that removed the 90-day limitation on accumulation of sick leave and allowed payment upon retirement for all accumulated sick leave without limit. Ward, 560 S.W.2d 163. The court held that retiring employees could not be paid for more than 90 days of the unused sick leave they had accumulated prior to the effective date of the amendment, because "[t]he payment of more than 90 days sick leave accruing prior to September 1, 1975, would be in violation of Art. 3, § 53 of the Texas Constitution." Id. at 166.

Thus, a sick leave pool may not be created in a way that it provides additional benefits in compensation for work already performed. For example, if a city employee had exhausted his sick leave and taken unpaid sick leave before the city created a sick leave pool, he could not draw on the pool as a means of reimbursement for those past unpaid sick leave days. The sick leave pool may, however, be used to increase an employee's potential sick leave benefit prospectively. See Attorney General Opinion JM-1160 (a county policy to become effective prospectively that grants additional sick leave to county employees does not violate article III, section 53). Once a sick leave pool is established, this employee benefit becomes a term of employment with the city, and employees receive its benefits prospectively, as compensation for work performed after it is established. Byrd, 6 S.W.2d 738.

When an employee contributes to the sick leave pool some of his sick leave accumulated before the pool was established, he is not receiving an additional benefit or additional compensation for work performed in the past. On the contrary, he voluntarily relinquishes the right to use those days of paid sick leave himself and subjects them to the conditions the city has developed for use of the sick leave pool. Thus, the employee's contribution to the pool of sick leave acquired before the pool was established will not cause the city to violate article III, section 53. Whether other terms of a particular sick leave pool are consistent with article III, section 53 of the Texas Constitution must be decided on a case-by-case basis.

                               SUMMARY

      A home rule city has authority to create a "sick leave pool" to which municipal employees may contribute previously acquired sick leave and from which other employees may draw if they are ill but have no sick time left. If the benefits of the sick leave pool are available only prospectively, it will not violate article III, section 53 of the Texas Constitution. When an employee contributes to the sick leave pool sick leave accumulated before the pool was established, he is not receiving additional compensation for work previously performed; thus, he is not involved in a violation of article III, section 53 of the Texas Constitution.

                                            DAN MORALES
                                            Attorney General of Texas