Section 5.44 - Payments for Accrued Vacation and Sick Leave to the Estates of Deceased State Employees(a) Definitions. In this section: (1) "Calendar month" means the first day through the last day of January, February, March, April, May, June, July, August, September, October, November, or December.(2) "Community college" has the meaning assigned to public junior college.(3) "Comptroller" means the Comptroller of Public Accounts for the State of Texas.(4) "Fiscal year" means the accounting period beginning on September 1st and ending the following August 31st.(5) "Institution of higher education" has the meaning assigned by Education Code, § 61.003, except that the term does not include a community college or a public junior college.(6) "National holiday" has the meaning assigned by Government Code, § 661.031(1).(7) "Public junior college" has the meaning assigned by Education Code, § 61.003.(8) "State agency" means a department, board, commission, committee, council, agency, office, or other entity in the executive, legislative, or judicial branch of Texas state government, the jurisdiction of which is not limited to a geographical portion of this state. The term includes the State Bar of Texas, the Board of Law Examiners, and an institution of higher education. The term does not include a community college or a public junior college.(9) "State employee" has the meaning assigned by Government Code, § 661.031(2).(10) "State holiday" has the meaning assigned by Government Code, § 661.031(3).(11) "Temporary state employee" means a state employee who is hired to provide services to a state agency for a limited time. The term includes a seasonal employee. The term does not include: (A) an independent contractor; or(B) an employee or independent contractor of an independent contractor.(12) "Total leave balance" means the sum of: (A) the accrued balance of a deceased state employee's vacation leave; and(B) the lesser of: (i) half of the accrued balance of the employee's sick leave; or(ii) 336 hours of sick leave.(13) "Workday" means any day except Saturday and Sunday. The term includes a state or national holiday.(b) Meaning of "continuous state employment." For purposes of determining whether the estate of a deceased state employee is entitled to be paid for the employee's total leave balance, the employee had "continuous state employment" so long as employment with the state was not interrupted by a period when the employee was not being paid a regular state salary. The period when the employee was on leave without pay or leave of absence without pay was not an interruption that required the period of continuous state employment to begin again. A leave period that covered one or more entire calendar months, however, did not count toward fulfilling the six month requirement in Government Code, § 661.032(a).(c) Responsibility for making the payment. The state agency that employed a state employee at the time of the employee's death is responsible for paying the employee's estate for the employee's total leave balance. This responsibility exists even if the employee at that time held a position that did not accrue vacation leave or sick leave, or both.(d) Hours of total leave balance to be paid. (1) Allocation of total leave balance. A deceased state employee's total leave balance must be allocated over the workdays following the date of the employee's death until the balance is allocated completely. (A) If the employee, at the time of death, was normally scheduled to work at least 40 hours each week, then each workday consists of eight hours.(B) If the employee, at the time of death, was normally scheduled to work fewer than 40 hours each week, then each workday consists of 20% of the number of hours the employee was normally scheduled to work each week.(2) Addition for holidays encountered during the allocation. (A) This subparagraph applies to a state employee who, at the time of death, was normally scheduled to work at least 40 hours each week. Eight hours must be added to the employee's total leave balance for each state or national holiday that occurs during the period over which the balance is allocated.(B) This subparagraph applies to a state employee who, at the time of death, was normally scheduled to work fewer than 40 hours each week. A specified number of hours must to be added to the employee's total leave balance for each state or national holiday that occurs during the period over which the balance is allocated. The number of hours added for each holiday is equal to the product of: (ii) the percentage of 40 hours that the employee was normally scheduled to work each week at the time of death.(3) Individuals not state employees during the allocation period. The inclusion of a workday in the allocation of a total leave balance does not result in any individual being a state employee on that workday for any purpose.(e) Computation of the payment. (1) Total leave balance allocated over only one month. If a deceased state employee's total leave balance is allocated over only one month, then the amount of the payment for that balance is equal to the product of: (A) the number of hours of the balance; and(B) the applicable rate of compensation of the employee, which must be expressed as an hourly rate for that month.(2) Total leave balance allocated over more than one month. If a deceased state employee's total leave balance is allocated over more than one month, then the amount of the payment for that balance is equal to the sum of the amounts attributed to each month included in the allocation. The amount attributed to any particular month is equal to the product of: (A) the number of hours of the total leave balance that is allocated to that month; and(B) the applicable rate of compensation of the employee, which must be expressed as an hourly rate for that month.(f) Applicable rate of compensation. (1) Items included in the rate of compensation. For purposes of determining the amount of a payment under this section, a deceased state employee's rate of compensation includes base pay plus any emolument or stipend provided as a salary supplement. A special item of compensation, e.g., housing, utilities, clothing, and cleaning, may be included in the rate only if it was provided in lieu of base pay. Longevity pay, hazardous duty pay, and benefit replacement pay may not be included in the rate.(2) Employees who were not hourly. This paragraph applies only to a state employee who was not an hourly employee at the time of death. (A) The employee's rate of compensation must be expressed as an hourly rate for each month or part of a month included in the allocation of the employee's total leave balance.(B) This subparagraph applies only if the state agency making a payment under this section is not an institution of higher education. The hourly rate of compensation for a particular month is equal to a quotient: (i) the numerator of which is equal to the rate of compensation for the month; and(ii) the denominator of which is equal to eight multiplied by the number of workdays during the month.(C) This subparagraph applies only if the state agency making a payment under this section is an institution of higher education. The institution may calculate the hourly rate of compensation for a particular month under the method described in subparagraph (B) of this paragraph. If the institution determines not to use that method, then the hourly rate of compensation for a particular month is equal to a quotient: (i) the numerator of which is equal to the rate of compensation, expressed as an annual rate; and(ii) the denominator of which is 2080.(3) Employees who had contracts to work fewer than twelve months each fiscal year. This paragraph applies to a state employee who, at the time of death, was normally scheduled to work for a state agency fewer than twelve months during a fiscal year but who agreed for the agency to pay the compensation earned during that work period over twelve months. The employee's applicable rate of compensation must be based on the amount of compensation earned each month the employee worked, not on the amount of compensation paid to the employee each month of the year.(g) Payroll details. The payroll detail submitted to the comptroller to make a payment under this section must include: (1) the employee's rate of pay at the time of death;(3) the number of days and hours of the employee's accrued vacation leave balance, not including hours for authorized national and state holidays; and(4) the number of days and hours of the employee's accrued sick leave balance, which must be the number before the application of the 336 hour limit on the number of hours of sick leave that may be paid.34 Tex. Admin. Code § 5.44
The provisions of this §5.44 adopted to be effective June 28, 2005, 30 TexReg 3732