j                     OFFICE     OF THE     AlTORNEY     GENERAL     OF TEXAS
j                                               AUSTIN
    GROVER     SELLERS
     Avr8111wGENIAL



    llonorablc John II. Shook
    Crlmlnal District Attorney
    Bexar County
    Son Antonio, Texas

    Dear Mr. Shook:                            Opltllon RO* O-7461




                      We hate     four                              the aonstructlaa oi
    Article 23726, leraoa'                                          Civil Statutes, with
    respect      to      the   ahot                                et-1 8s   fol]owBt




                                                               f P. E. Dlcklnon,
                                                               t, Texas, reda-
                                                               tember, 1946, to

                                                      the Aderaor-Collector
                                                     nd during the last  twelve


                                         r, went to work with the City of Ssa
                                         first day of September, and ras em-
                                         e period from September 1st through


                      'atTBsrIOR:        Can this employee be paid for the
                                          period from September 1st to Scp-
                                          teaber 15th by the Assessor-Col-
                                          leator of Bexar County, Texas?

                   *By way of brief, YOU 8re referred to Article
              2372g of the Revised Clrll Statute. of the State oi
              Texas, and your attention is dlreated p8rtlanlarl~
amarable       John R. Sbcc! - pare 2                                               I.43   _




      to Section 3 thereof. Tour attention  Is also dl-
      rooted to Article 16, Section 40, Of the Constitu-
      tion.

            .so far as we hate been able ta MI‘:!,    the
      question of abether  or not 8 party  ray be pald for
      vacation t.iwebf the Count.7 while working    for an-
      other  po?ltiaal subdirision has not been Ozsued on
      since Artfcle  2372~ was passed by t.he ?eelslature.*


          TON call our attept.lon to Article 23?2~, Vernon’s
C~:?fflcation of the Clrjl Statutes, helng H. Ii. Xo. 77, ch. 58.
of-the Acts of the 49th Texidature   at its neizular Fesdnn.

               t?ection     3 nf t.hatArticle       is as f~11 os~st

            "The Coiwissloaere Courts 5~8~ ffnnt     racatlons
      to errvlopees in the actual emOlop of 4~ch counties
      not exaeedinE     fourteen (14)  days in anp calendar
      year  .znd, when such vacatlelrn are erznted, aI7 en-
      rloyees In actual emylapevt       of such c~untjes sha'll
      be cnmnensated for such vacatlm, time as If actual
      service were helvc rendered under thejr       emnlopent.
      It bein?    t.he purpose nf thjs  Act to want   reesonahle
      vacation time durlnr each oalmdar       year  For employ-
      ees In the aouvties embraced within thjs Act.’

               Berar County         PalYs Utt?in the    class c\f counties thus
enhraced.

               IOU   alse  cite Section 40 of Article    XVI of the State
Ccnstltutlon.          That Eeotlon Insofar au wertjnent    In as follower

               "FO person shall          hold or exerol se, 8 t t,he sar?e
       tine,    more      tbsn    dire Oitil offioe Of emnlunewf,**+.*

          Xe *ssu*e  from pour clt,lng  Sectinn    40 it was your
trrucbt that the question Of clnal oftlce-boldi~nc      by the em-
n?oyee in nresented.

              IOU rlonot. state the character of serrjoe Farformed by
 this erinloree    fOr the c1t.v 0T 5an Avtanlo, but were3r say he, how-
 ever,  .xent   t,o rnr:- rj th t.he city  Of Can Antonio   IV the 1st day
 of Fentepber     and ran evlrTlnred hlrins!  the nerlod  from Sertember
 1st throupb Sentemher 15the". We are not 8drised whether            hjs ser-
 vice VP= t.pst of an otffcer       Or s mere emnlapee &wlnB that verlod.
 We ausure,      however,        thst   Fe was an e~~rlovee   w+fl mot aF offfcer    of
the ci tv of San Artonio.   Mareovert you do not shot t,hat the
emntoyee lnvalvc~ was other than an employee hy !'r. Dictioon,
the Tax Assessor-Collector of Perar Countv, ard we therefore
a6w?w    that he was not nn offjcer Of the county but 18s e mere
err!    ogee.

            Cpon these osunmrtlons  -- that i6, that the em))Yoyee
into1  red -- was an employee, as oontradlstlngulshed from 811 of-
ficer, in hoth eervioes , no question of irue office-holding Is
jnvolverl,  and Section 40 of ArtlOYB XVI of the Constjtutlcw has
no l-earing  upon the problem presented.

              In some oaem it    fs true, as where the dual    sewice   by
en eFp1 oyee of one mtmiojpalj      ty ~rformin?    at the same time of
hjs  servjce     n service  for enother munlOip8lit~,    miRht be of such
Inoomnatihllit~v     es t.het one or even hnth municipalities     might  re-
fuse  to nay hjr     couwensatjon   for such rerfod, but that principle
of rwb>ic poljoy canI% hardly a?!plJ t.0 the situation st8ted by
VU, for indisruk.ahIv the employee did not owe to Rexar County
t?!a duty nf any servzlce nhettoever   dvrlnr the st8tutory vacation
n~Jnwer) to him on fu?l wv, sn% Werefore his actual perfc?munce
nf CervIoe for another municipal     esploper could not he incon?nat-
lh?e with any duty he owed to We      County.

            We know of no reason  rhy,urder the facts          state%   h?   you,
1:exar Ccunty FBJ not be llahle   an3 should not PRY         t@ the employee
hi6 stjpulated    sa1arv for an% through .the +aeatl,on       neriorl   allowed
him.      Under the statutorv scheme of aT?oranoe OP ren sonable vaca-
t37n 131379t,oerplovees , he was entl tYed to this concessjon,             hut
wa = not comnelled       to devote     nuch t.ime to rest   nnd Jel?nwe,   ejther
at home, ip the huntinE         fjelds,    or on #e river banks.       Hi6 thIe
fer 6uch period wa6 hi6 ver? rwn, and if for an3 ree8on                he 681 fit
t.r,  t,urn It to comnensatory       actiojtlea, his was the choice,      ard, he
?-arrrs neither     t.he State ,  the   aounty  nor env   j?!diri%t:RS. As the
?tr*7.3rb   has it,    "Nobcdy Seems one nen?y the worse”!