Untitled Texas Attorney General Opinion ( 1972 )

RNEY GENERAL
August 31, 1972
Hon. Everett L. Anschutz Opinion No. M- 1206
Executive Secretary
Employees Retirement System of Texas Re: Meaning of "Chief
P. 0. Box 12337, Capitol Station Fxecutive Officer"
Austin, Texas 78711 of a state agency
under Article
Dear Mr. Anschutz: 6228a, V.C.S.
You have requested our opinion as to the meaning of the
term "Chief Executive Officer under Article 6228a, Section
4 H.2., Vernon's Civil Statutes, as applied to the Texas
State Hospitals and Special Schools, under the facts presented.
We quote in part from your request:
"Reference is made to Subsection H.2. of Section
4 of Article 6228a, Vernon's Texas Civil Statutes,
which provides that under specified circumstances
a contributing member of the Employees Retirement
System of Texas shall be eligible to claim credit
for service as a Board Member of a statutory Texas
State Department having statewide jurisdiction.
Your attention is directed to that portion of Article
6228a, V.T.C.S., which provides as follows:
I
.Credit for such service shall
be granted'only upon payment of all contri-
butions, penalties and fees required.
Contributions reauired for elinible board
members shall be'based upon thg salary
paid to the chief executive officer (emphasis
added) of such department, agency or
commission during-the time for which such
credit is claimed.'
“A former member of the Board for Texas State
Hospi.tals and Special Schools has requested credit
with the Employees Retirement System of Texas for his
service on that Board, dating from January 1957
through December 1962. The Board for Texas State
Hospitals and Special Schools was created pursuant
to Article 3174b, V.T.C.S., and was responsible for
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Hon. Everett L. Anschutz, page 2 (M-1206)
the management and control of the Texas State Hospitals
and Special Schools. To accomplish its purpose,
Section 5 of Article 3174b, V.T.C.S., authorized the
Board for Texas State Hospitals and Special Schools
to employ necessary personnel to carry out the policies
of the Board. . .
"This office has interpreted the statutory
language 'Chief Executive Officer' of Subsection
H.2. of Section 4 of Article 6228a, Vernon's Texas
Civil Statutes, to mean the highest paid officer
of the department. . .
"Our interpretation has been questioned with
the contention that the term 'Chief Executive Officer'
mean@ the Executive Director of the Board as provided
for in Article 3174b, V.T.C.S."
An 'Executive Officer" is defined to be one whose duties
are mainly to cause the laws to be executed and obeyed.
Petterson v. State, 58 S.W.100, 101 (Tex.Crim.App. 1900). An
executive officer is one who assumes command or control and
directs the course of business and who outlines duties and
directs the work of subordinate employees. Arkansas Amusement
Corp. v. Kempner 182 Ark. 897, 33 S.W.2d 42, 43 (1930).
"Chief" means main or princi al, Dobess Realty Corp. v.
Magid, 61 N.Y.S.2d 324, 328 (19467, and implies an executive
or directing head; the directing head of a department or
or the like Stout v. Stinnett, 210 Ark. 684, 197
%%‘564, 565(1g4i).
We conclude that the "Chief Executive Officer" of the
department or agency with which we are here concerned, the
Texas State Hospitals and Special Schools, pursuant to Article
3174b, Section 5, Vernon's Civil Statutes, which was in effect
during the time the credit for state service is claimed, was
the "Executive Director of the Texas State Hospitals and Special
Schools", whose statutory salary was first set under the
statute at $10,000 per annum. Under Article 317413,the Board
was required to employ such Executive Director, with "qualifi-
cations and training which suit him to manage the afftirs of a
modern system of State Hospita;s and Special Schools. The
statute further provided that it shall be his duty to
carry out the policies of the gard'in the management and
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Hon. Everett L,:Anschutz, page 3 (M-1206)
control of the institutions under said Hoard. The Executive
Director shall give bond in the sum of Fifty Thousand Dollars
($50,000) payable to the State of Texas conditioned upon the
faithful performance 'of his duties."
There can be no doubt that the Legislature intended that
the Executive Director was to be the bonded officer with the
principal or chief managerial and control powers to execute
the Hoard's policies and plans and to cause its rules and
regulations to be carried out and obeyed. The mere fact that
other specialized employee8 might receive a larger salary
while in the employment of the Hoard under the current or
subsequent appropriations act would have no bearing upon the
statutory office and nature of duties and responsibilities
of the Executive Director. The statute must prevail over the
aijpropriationsact, and regardless of any.title given in the
latter to any other employees. For the legislature is without
power to legislate in the appropriations act or to change the
Attorney General Opinion Nos.
$g$;;,$ ~s~;~~p;C~;ore v* Sheppard, 144 Tex. 537,
4 m-gap
192 S.W.2d 559(1946).
For example, it is noted in the appropriation act for the
years ending August 31, 19,60and August 31, 1961 (56th Leg.
3rd C.S., ch. 23, pgs. 473-474) there wa'sappropriated $20,000
for the Director of Mental Health and Hospitals, whereas the
Executive Director1 who is also given the title of "Administrator
of Special Schools' was appropriated only $15,000. Any ambiguity
in the title shown in the appropriation Bet- 'Executive Director
and Administrator of Specil Schools" may be resolved by reference
to the statute creating the office of "Executive Director."
Such designation by the Legislature in the appropriation bill
does not and can not have the effect of changing or demoting
the Executive Director from his statutory office and duties as
the "Chief Executive Officer" of the Texas State Hospitals and
Special Schools. In order to effectuate a change in that
status, a statutory amendment would be necessary. There was
none. Such general legislation consti~tutesa separate subject
and cannot be included within the general ap ropriation act,
See Attorney General Opinion No. M-1199(19727 and authorities there
cited. We cannot, therefore, construe the term "Chief Executive
Officer" a-
c used in Section 4 H.2. of Article 6228a, to mean the
highest paid officer of the department.
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. c
Hon. Everett L. Anschutz, page 4 (M-1206)
-SUMMARY-
The term "Chief Executive Officer" as used
in Article 6228a, Section 4 H.2., V.C.S., In
determining contributions required for eligible
board members who qualify for retirement credit
for service, and as applied to the Texas State
Hospitals and Special Schools under the facts
presented, does not necessarily refer to the highest
paid officer of the department or agency but refers
to the "Executive Director of the Texas State Hospi-
tals and Special Schools", who was the bonded officer
with the principal managerial and control powers
to execute the Board's policies and plans and to cause
its rules and regulations to be carried out and
obeyed.
YOA very truly,
General of Texas
Prepared by Kerns Taylor
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
W. E. Allen, Acting Chairman
J. C. Davis
Den Harrison
Roger Tyler
John Hanks
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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