How is a Texas university professor's unused vacation pay calculated after leaving an administrative position?

Plain-English summary

State universities are state agencies, so their employees fall under the leave rules in chapter 661 of the Government Code. The president of Texas Southern University asked the AG how to handle a long-running vacation-leave payout for a professor whose roles had shifted over nearly two decades. In the hypothetical, the professor held a nine-month faculty appointment and at various points (2002, 2007-2008, 2012-2013) also took on administrative positions that paid extra. By 2014 the professor was back to faculty work only, and in 2019 the university wanted to pay out the accrued, unused vacation leave. Two questions followed: is the payout based on the combined faculty-plus-administrative pay or only the administrative pay, and when is the payment owed.

On the first question, the AG worked through the statute. Vacation leave for state employees is governed by subchapter F of chapter 661, and section 661.152(a)(2) expressly excludes a higher-education faculty member employed for fewer than 12 months from the vacation-leave entitlement. So a nine-month faculty position does not accrue vacation. The position that did accrue vacation was the administrative one. Payment on separation is governed by subchapter C, and section 661.063(b) computes the payout for an employee who separates while holding a position that does not accrue vacation by using the "employee's final rate of compensation in the last position held that accrues vacation." Reading those together, the AG concluded the payout is calculated using only the compensation paid for the administrative position, not a combined faculty-and-administrative sum.

On the second question, the AG explained that the statute triggers a vacation-payment entitlement in only three situations: when the employee resigns, is dismissed, or otherwise separates from employment (section 661.062(a)). Because the hypothetical professor still worked for the university, the relevant provision was section 661.062(b), which lists five circumstances that count as separation. Subsection (b)(5) covers an employee who holds two or more positions and separates from one that accrues vacation, "if the agency agrees to pay the employee for the accrued balance." The AG read that to mean the entitlement arises only when both prerequisites are met, the change in circumstances and the agency's agreement to pay, and whether they are met depends on the particular facts, which an AG opinion does not decide.

Currency note

This opinion was issued in 2019. 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.

What the opinion meant for those who asked

University human-resources and payroll administrators: At the time of the opinion, when a faculty member who had also held an administrative post separated from the administrative duties, the AG read chapter 661 to base the unused-vacation payout on the administrative salary alone, because the nine-month faculty position did not accrue vacation. The relevant figure was the final rate of compensation in the last vacation-accruing position.

University presidents and governing boards: The opinion treated the timing of payment as fact-dependent. For an employee who keeps working but leaves a vacation-accruing position, section 661.062(b)(5) made the payout entitlement turn on the agency agreeing to pay the accrued balance, so the institution's own decision was one of the two triggers. The AG declined to resolve whether the triggers were met in the described scenario, noting AG opinions do not answer fact questions.

Faculty members who take on administrative roles: The opinion explained that a sub-12-month faculty appointment does not accrue vacation leave, so vacation accrued only during the periods of full-time administrative service, and any payout would be measured by the administrative compensation.

Common questions

Does a nine-month professor accrue vacation leave in Texas?
No. The opinion pointed to section 661.152(a)(2), which excludes a higher-education faculty member employed for fewer than 12 months from the vacation-leave entitlement.

If a professor also held a paid administrative job, what salary sets the vacation payout?
The administrative salary. The AG concluded the payout uses the final rate of compensation in the last position that accrued vacation, which in the hypothetical was the administrative position, not the combined faculty-plus-administrative pay.

When does the university have to pay out the accrued vacation?
The entitlement is triggered when the employee resigns, is dismissed, or otherwise separates. For an employee who keeps working but leaves a vacation-accruing position, section 661.062(b)(5) requires both the change in circumstances and the agency's agreement to pay before the entitlement arises.

Did the AG decide whether this particular professor was owed payment?
No. The AG said whether the prerequisites were satisfied depends on the particular facts, and that attorney general opinions do not answer fact questions.

Background and statutory framework

Chapter 661 of the Government Code provides leave for state employees, and its definitions bring institutions of higher education within its scope (section 661.001, with "state agency" defined to include an institution of higher education under Education Code section 61.003). Subchapter F (sections 661.151-.154) governs vacation leave. Section 661.152(a) generally entitles a state employee to vacation leave each fiscal year, but section 661.152(a)(2) excludes a higher-education faculty member employed fewer than 12 months. The opinion cited JM-401 (1985) for the point that such a faculty member has a contractual relationship governed by state law and the institution's rules rather than the usual state-employee leave regime.

Subchapter C (sections 661.061-.068) governs payment for vacation time on separation. Section 661.062(a) entitles an employee with six months of continuous state employment who separates to be paid the accrued vacation balance, and section 661.061(2)(F) defines "state employee" to include an administrative or faculty employee who accumulated vacation leave during the employment. Section 661.063(b) supplies the calculation for an employee who separates while holding a position that does not accrue vacation, using the final rate of compensation in the last position held that accrues vacation. Section 661.062(b) lists five circumstances constituting "otherwise separates," including subsection (b)(5) for an employee holding two or more positions who separates from one that accrues vacation if the agency agrees to pay. A footnote noted the request did not ask about budget restrictions under section 661.006, and the opinion cited GA-0867 (2011) for the principle that AG opinions do not answer fact questions.

Citations

Statutes and codes:

• Tex. Gov't Code §§ 661.001-.924; § 661.001(1), (4)(B); § 661.006; §§ 661.061-.068; § 661.061(2)(F); § 661.062(a), (b), (b)(5), (d); § 661.063(b); §§ 661.151-.154; § 661.152(a), (a)(1)(A), (a)(2)
• Tex. Educ. Code § 61.003; § 61.003(8)

Attorney General opinions:

• Tex. Att'y Gen. Op. No. JM-401 (1985)
• Tex. Att'y Gen. Op. No. GA-0867 (2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0268
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0268.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

September 11, 2019

Dr. Austin A. Lane Opinion No. KP-0268
President
Texas Southern University Re: Payment for unused vacation leave after
3100 Cleburne Street employee separation (RQ-0279-KP)
Houston, Texas 77004

Dear Dr. Lane:

    You seek an opinion about the appropriate rate of pay for accrued but unused vacation

leave when a university employee separates from his or her academic administrative position.1 For
context, you describe a hypothetical scenario involving a professor. The professor worked on a
nine-month faculty appointment and in 2002 took on an additional administrative position. See
Request Letter at 1. For the administrative position the professor received $20,000 annually in
addition to the professor's annual teaching salary of $60,000. See id. After three years, the
professor separated from the administrative duties and reverted back to the teaching salary only.
See id. In subsequent periods, 2007-2008 and 2012-2013, the professor assumed on an interim
basis similar administrative positions for different rates of pay. See id. As of 2014, the professor
has performed no administrative duties and works solely in the capacity of a nine-month professor.
See id. Now, in 2019, the university and the professor want a payout of the accrued yet unused
vacation leave. See id. In light of this scenario, you ask two questions. See id. at 2. You first ask
whether a university must remunerate a faculty member who separates from administrative duty
for accrued and unused vacation hours "as a holistic sum (i.e., the faculty pay and administrative
pay as one sum) or ... based only upon the additional salary paid for the administrative position."
Id.

   You refer us to chapter 661 of the Government Code, which provides for leave for state

employees. Id.; see TEX. GOV'T CODE §§ 661.001-.924.2 Specifically, Subchapter F of chapter
661 governs vacation leave for state employees. See TEX. GOV'T CODE §§ 661.151-.154. Within
subchapter F, section 661.152 generally provides that a state employee is entitled to vacation leave
each fiscal year. See id. § 661.152(a). But the provision expressly excludes from that entitlement
a higher education faculty member employed for a period of fewer than 12 months.3 See id.
§ 661.152(a)(2); see also Tex. Att'y Gen. Op. No. JM-401 (1985) at 2 (recognizing that, unlike
usual state employees, a "faculty member with an appointment of less than 12 months is an
employee with a contractual relationship governed by state law, the rules and regulations of the
governing body of the institution, and terms of his appointments for specific years"). Under
subsection 661.152(a)(2), a nine-month faculty position is not entitled to annual vacation leave.

    Subchapter C governs payment for vacation time to state employees who separate from

state employment. See TEX. GOV'T CODE §§ 661.061-.068. Within subchapter C, section 661.062
provides that a state employee who "has accrued six months of continuous state employment4 and
who resigns, is dismissed, or otherwise separates from state employment by an institution of higher
education is entitled to be paid for the accrued balance of the vacation time as of the date of
separation." Id. § 661.062(a) (footnote added). For purposes of subchapter C, a "state employee"
includes an administrative or faculty employee at an institution of higher education "who has
accumulated vacation leave during the employment." Id. § 661.061(2)(F). In the hypothetical
situation you describe, the employment which has accumulated vacation leave is the administrative
position. Thus, only the administrative position forms the basis for any payment entitlement. For
an employee in the circumstances you describe, subsection 661.063(b) provides that the payment
is calculated by multiplying the "employee's final rate of compensation in the last position held
that accrues vacation" by the employee's total number of hours of vacation time. Id. § 661.063(b)
(providing calculation for an employee who separates from employment while holding a position
that does not accrue vacation time). Accordingly, the compensation used for the calculation for
payment of vacation leave about which you ask is only the compensation paid for the
administrative position.

     In your second question, you ask about the appropriate time for the payment for vacation

leave "[i]n a scenario wherein a professor does not want to be paid for accrued and unused vacation
at the time of separation from administrative duties." Request Letter at 2. The statute triggers an
entitlement for payment for vacation leave in only three instances: when the state employee
resigns, is dismissed, or otherwise separates from employment. See TEX. GOV'T CODE
§ 661.062(a). As your hypothetical professor still works for the university we consider whether
the professor has otherwise separated from employment under subsection 661.062(b), which
identifies five circumstances that constitute such separation. See id. § 661.062(b). Subsection
661.062(b)(5) identifies the circumstance in which an employee "holds two or more positions, and
separates from one that accrues vacation time, if the agency agrees to pay the employee for the
accrued balance of the employee's vacation time." Id. § 661.062(b)(5). By its plain terms,
subsection 661.062(b)(5) entitles an employee to the vacation leave payment upon the occurrence
of the described change in employment circumstances and "if the agency agrees to pay the
employee for the accrued balance of the employee's vacation time."5 Id. Thus, the entitlement
arises on the fulfillment of both prerequisites, which will depend on particular facts. See Tex.
Att'y Gen. Op. No. GA-0867 (2011) at 2 ("Attorney general opinions do not answer fact
questions.").

                                 SUMMARY

                  Government Code subsection 661.063(b) provides that
          vacation leave pay for an employee who separates from state
          employment while holding a position that does not accrue vacation
          time is computed using the "employee's final rate of compensation
          in the last position held that accrues vacation." In the hypothetical
          scenario you describe, the administrative position is the last position
          held that accrues vacation, so the compensation used for the
          calculation for payment of vacation leave is only the compensation
          paid for the administrative position.

                  Subsection 661.062(b)(5) entitles an employee to payment
          for vacation leave upon the occurrence of the described change in
          employment circumstances and "if the agency agrees to pay the
          employee for the accrued balance of the employee's vacation time."
          Thus, the entitlement arises on the fulfillment of both prerequisites,
          which will depend on particular facts.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

1See Letter from Dr. Austin A. Lane, President, Tex. S. Univ., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Apr. 4, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
2TEX. GOV'T CODE § 661.001(1), (4)(B) (defining "employee" as "an individual, other than a state officer, employed by a state agency" and "state agency" to include "an institution of higher education as defined by section 61.003, Education Code"); see also TEX. EDUC. CODE § 61.003(8) (defining "institution of higher education" to mean "any public technical institute, public junior college, public senior college or university, medical or dental unit, public state college, or other agency of higher education as defined in" section 61.003).
3Section 661.152 also excludes from the vacation leave entitlement a higher education employee who "is not employed to work at least 20 hours per week for a period of at least four and one-half months." TEX. GOV'T CODE § 661.152(a)(1)(A). Because you tell us that your administrative positions such as provost, deans, associate deans, and department chairs "are employed full time for 12 months each fiscal year," we assume the hypothetical administrative position is likewise employed so that this exclusion does not apply. Request Letter at 2.
4"State employment is continuous ... while the employee is entitled to be paid a regular state salary, except that continuity of state employment is not interrupted while the employee is on a leave of absence without pay for less than one calendar month." TEX. GOV'T CODE § 661.062(d).
5You do not ask us to opine about any budget restrictions implicated by your scenario. See generally TEX. GOV'T CODE § 661.006.