Untitled Texas Attorney General Opinion ( 1971 )


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  •              THE   ATTORNEY              GENERAL
    OF     TEXAS
    Herbert C. Wilson                           Opinion No. M- 888
    Deputy Commissioner
    State Department of Public Welfare          Re:    Compensation for
    hourly employees.
    R. L. Coffman
    Administrator
    Texas Employment Commission
    David Wade, M. D.
    Commissioner
    Texas 'Departmentof Mental~Health
    and Mental Retardation
    Gentlemen:
    Your joint request for an opinion reads as follows:
    "This is the official request of the State
    Department of Public Welfare, the Texas Employment
    Commission and the Texas Department of Mental Health
    and Mental Retardation hor a clarification of Opinion
    No. M-850 dated May 5.~1971.
    "Since the above Opinion was issued a question
    has arisen with regard to the authority of these
    three (3) agencies to pay a supplemental payroll
    out of the appropriations made to the 'respective
    agencies in the Appropriations Act. The payrolls
    in question are in payment of wages to hourly
    employees computed on an hourly basis.
    "House Bill No. 2, Acts of the 61st Legislature,
    Second Called Session, 1969, the General Appropriations
    Act for the biennium ending August 31, 1971, makes a
    specific lump sum appropriation to the Department of
    Public Welfare for 'seasonal help' (Article III, Page
    169, Item 14).
    -4326-
    Herbert C. Wilson, page 2               (M-888)
    R. L. Coffman. David Wade, M. D.
    "House Bill No. 2, Acts of the 61st Legislature,
    Second Called Session, 1969, the General Appropriations
    Act for the biennium ending August 31, 1971, makes a
    specific lump sum appropriation to the Texas Employ-
    ment Commission for 'salaries of classified positions,
    professional fees and services, part-time and seasonal
    help, merit salary increases' (Article III, Page 64,
    Item   ~9).
    "House Bill No. 2, Acts of the 61st Legislature,
    Second Called Session, 1969, the General Appropriations
    Act for the biennium ending August 31, 1971, makes
    specific lump sum appropriations to the various ad-
    ministrative divisions and to the facilities and in-
    stitutions under the jurisdiction and control of the
    Texas Department of Mental Health and Mental Retarda-
    tion for salaries of classified positions. Article II,
    Section 2, Paragraph d, Page 37, of the current Appro-
    priations Act provides as follows:
    '1t':isfurther pr~wided that appropriations
    for salaries of classified positions may be
    used to pay the wages of hourly workers when
    the utilization of such personnel is in the
    best interest of an economical and efficient
    program.'
    "Your opinion No.   M-850   states    that:
    I
    . . . where the Legislature has made a
    specific lump sum appropriation for hourly
    wages without placixqlimitations on the
    rate of pay to be paid hourly employees, then
    the head of the agency to whom the appropriation
    is made has the sole discretion to fix the
    hourly rate of pay for such employees . . .'
    "Cur respective agencies have for many years in-
    terpreted the specific appropriations cited above as
    authority to hire and pay employees on an hourly basis
    -4327-
    Herbert C. Wilson, page 3        (M-888)
    R. L. Coffman. David Wade, M. D.
    at a rate determined at the discretion of the agency.
    We believe this is in keeping with the case of Humble
    Oil and Refining Co. v. Calvert, 414 S.W.Zd 172,
    which points out that where there is any ambiguity
    in a statute the ,courtswill look with favor upon the
    longstanding construction by a State agency of an
    ambiguous phrase.
    "On the basis of your Opinion No. H-850, the
    State Comptroller has questioned this interpretation.
    "With respect to each of the agencies requesting
    this Opinion, do the above quoted lump sum appropria-
    tions authorize our respective agencies to hire and
    pay hourly employees from such appropriations and to
    fix the hourly rate of pay for employees hired on an
    hourly basis?
    *This joint request for an opinion is submitted
    in lieu of the request dated June 15, 1971, submitted
    .by the State Department of Public Welfare."
    In Attorney General's Opinion No. M-850 it was held:
    "Furthermore, in answer to your third and fourth
    questions, where the Legislature has made a specific
    lump sum ,appropriationfor hourly wages without placing
    limitations 'onthe rate of pay to be paid hourly em-
    ployees, then ,thehead of the agency to whom the appro-
    priation is made has the sole discretion to fix the
    hourly rate of pay for such employees. See for example,
    Item 24 of the appropriation to the Highway Department
    in the current General Appropriations Act (House Bill 2,
    Acts 61st Leg. 2nd C.S., 1969, at p. 770 ~of the Session
    Laws).
    *Summarizing the foregoing it is our opinion
    that the only limitations placed on an employee's
    salary by the Legislature are the annual salary
    appropriated by the Legislature and the monthly
    salary to be paid in twelve equal installments."
    -4328-
    Herbert C. Wilson, page~4        (M-888)                   .~.
    R. L. Coffman, David Wade, M. D.
    It is further.pointed outin.Attorney General's Opinion
    No;   ~-850:          .~
    "The ~courts will ordinarily~.adoptand uphold
    departmentalconstruction by agencies charged with
    the responsibility ,forthe administration of a par-
    ticular statute , land such construction will not be
    overturned unless the construction is unreasonable
    or clearly wrong. 53 +Tex.Jur.Zd 259, Statutes Sec.
    177; Humble Oil and Refining Co. v. ~Calvert, 414
    S.W.,2d,l72 (Tex.Sup. 1967). This is particularly
    true in those'instances where ,statutoryprovisions
    shave been reenacted.without material change. The
    'Legislature is presumed tohave~known of such con-
    struction and ~practice and.acquieeced in:ft by its
    failure to amend or change it. ~Burroushs v. Lvles,
    
    142 Tex. 704
    , 181 S.W.Zd 570 (1944)."
    In the instant case y'our'respectiveagencies have for
    many years interpreted the specificappropriations cited in your
    request as authority to hire employees wn~.an hourly-basis and to
    fix the hourly rate of pay for such employees. The Legislature
    has acquiesced in such~departmental construction..
    You are accordingly advised,&hat .such construction is
    in conformance with Attorney General's Opinion 
    ~-850. supra
    , and
    each of the lump sum appropriations ,referred to in .your request
    authorizes the head of the respective agencies to.hire hourly
    employees. Furthermore, the head ~ofeach agency to whom the
    appropriation is made has the, sole.discretion tofix the hourly
    fate of pay for such.employees. .         ~. ':   ~.:~
    S UMMARY
    Where the Legislature has made specific lump
    sum appropriations for hourly wages the head of the
    agency to whom the appropriation.is made has the
    sole discretion to fix the hourly rate of pay of-
    such employee. Attorney General'e Opinion M-850
    (1971).
    -4329 -
    ,*
    Herbert C. Wilson, page 5              (M-888)
    R. L. Coffman, David Wade,   M.   D.
    Such specific lump sum appropriations for
    hourly wages have been made to the State Department
    of Public Welfare, the Texas Employment Commission,
    and the Texas Department of Mental Health and Mental
    Retardation.
    Y        very truly,
    C. MARTIN
    Prepared by John Reeves
    Assistant Attorney General
    APPROVED:
    OPINION COMMITTEE
    Kerns,Taylor, Chairman
    W. E. Allen, Co-Chairman
    Glenn Brown
    Houghton Brownlee
    Pat Bailey
    Fisher Tyler
    MEADE F. GRIFFIN
    Staff Legal Assistant'
    ALFREDWALKBR
    Executive Assistant
    NOLA WHITE
    First Assistant
    -4330-
    

Document Info

Docket Number: M-888

Judges: Crawford Martin

Filed Date: 7/2/1971

Precedential Status: Precedential

Modified Date: 2/18/2017