Untitled Texas Attorney General Opinion

. The Attorney General of Texas JIM MATTOX SeIltember19, 1986 Attorney General Supreme Court Building Honorable Oscar H. Mauzy Opinion No. ~~-548 P. 0. BOX 12546 Austin, TX. 76711. 2546 Chairman 51214752501 Committee on Jurisprudence lb?: Whether the Texas Department Telex 9101674-1367 Texas State Senate of Corrections may require com- Telecopier 5121475.0266 P. 0. Box 12068 pletion of one year of service Austin, Texas 78711 before awarding hazardous duty pay 714 Jackson. Suite 700 Oatlas, TX. 75202.4506 Dear Senator Mauzy: 2141742.6944 You have asked our opinion in regard to the validity of the Texas Department of Corrections' policy of requiring its employees to 4624 Alberta Ave., Suite 160 El Paso, TX. 79905.2793 complete one year of employment before they may become eligible to 9151533-3464 receive hazardous duty pay. Article 6252-20b, V.T.C.S., provides: All commissioned law enforcement personnel of /1401 Texas, Suite 700 the Department of Public Safety, all commissioned rston, TX. 77002-3111 law enforcement personnel of the State Purchasing I 031223.5666 and General Services Commission, all commissioned security officers of the State Treasury, all com- 606 Broadway, Suite 312 missioned law enforcement personnel of the Texas Lubbock, TX. 79401.3479 Alcoholic :BeverageCommission, all law enforcement 6061747-5236 officers .commissioned by the Texas Parks and Wildlife commission, all commissioned peace 4309 N. Tenth, Suite B officers of state institutions of hieher educa- McAllen, TX. 76501-1665 tion, antl all law enforcement personnel commis- 612,662.4547 -sionedF-the Texas Department of Corrections, and all emplo@es or officials of the Board of Pardons 200 Main Plaza, Suite 400 and Paroles who have routine direct contact with San Antonio, TX. 76205.2797 inmates cf any penal or correctional institution 512/225-4191 or with administratively released Drisoners An Equal Opportunity/ Affirmative Action Employer of existing hazardous duty or longevity pay. (Emphasis iadded). You have only asked {aboutthe construction of this act from the period beginning September 1, 1983 to the present. The General Appropria- ,---- tions Act for the biennium beginning September 1, 1983, provides: p. 2426 Honorable Oscar H. Mauzy - :?age2 (JM-548) 27. . . . tha! Department of ,Corrections is authorized to pay hazardous duty pay at a rate of Seven Dollars ($7.00) per month for each year of State service up to and including the 30th year for the following classifications: Warden II, Warden I, Assistant Warden, Major of Correctional Officers, Captain of Correctional Officers, Lieutenant of Ccxrectional Officers, Sergeant of Correctional OffJcers, Correctional Officer III, Correctional OffJ.cer II and Correctional Officer I. Employees in other classifications who work within the prisor,compound or whose work requires daily contact r.ith inmates may also receive hazardous duty pay; however, the total number of employees in other classifications eligible to receive hazardous; duty pay shall not exceed 500 non-unit employe=s. A list of such employees shall be filed annually with the Governor's Office of Management and Budget and the Legislative Budget Board. (Emphasis added). Acts 1983, 68th Leg., ch. 1095, at 5794. The General Appropriations Act for the biennium beginning September 1, 1985, provides in part: The Department of Corrections is authorized to nav A. All persons t,lassifiedas Correctional Officer I through Warden. . . . (Emphasis added). Acts 1985, 69th Leg., ch. %O, at 7353. You have informed us that TDC policy states that, when a new correctional officer is eq?loyed, the new employee is classified as a Correctional Officer I for a one-month training period, and then as a Correctional Officer II for a six-month probationary period, and then as a Correctional Officer III. However, under the TDC hazardous duty policy, no correctional o!ificers are granted hazardous duty pay for the first five months of occupying these positions. The issue is, therefore, whether the phrase "for each year of state service" as used in article 6252-20b, and the Appropriations Act require that a correctional officer &ete one year of employment with TDC before the employee is entitled tohazardous duty pay. For the following reasons, we conclude that article 6252-20b, V.T.C.S., which authorizes TDC to require its employet?sto complete one year of employment before they may become eligible te)receive hazardous duty pay; is valid. p. 2427 Honorable Oscar H. Mauzy - :?age3 (JM-548) The TDC is an admixtstrative agency of the state and is authorized to promulgate riles and regulations which are not incon- sistent with its enabling act and other state statutes. See V.T.C.S. art. 6166a et. seq. (enabling act); V.T.C.S. art. 6252xa, 93(l) (definition of state agency); Stanfield v. Texas Department of Public Safety, 422 S.W.2d 14 (TEx. Civ. App. - Dallas 1967, writ ref'd n.r.e.). Article 6252-2Ob, V.T.C.S., specifically authorizes TDC to award hazardous duty pay tl)"all law enforcement personnel" entitled to receive it. However, these law enforcement officials must also meet the required statutory time of service with the department. It is our opinion tha: the legislature's use of the words "for each year of state service" is unambiguous and its meaning is clear and obvious. Wall V. Wall, 172 S.W.2d 181 (Tex. Civ. App. - Amarillo 1943, writ ref'd w.o.m.1. The legislature specified the minimum amount of time, one year, ::nwhich an employee must serve before the benefit may be awarded. Wz are not at liberty to enlarge or modify this time period. The enployee must have completed one year of service before he can be awsrded these benefits. Moreover, this office has consistently held that when the length of service is used to establish state employee benefit entitlements in state statutes and approgtriations acts, the specified amount of service means the completion of the period of time specified. See Attorney General Opinions IfiJ-282(1980); H-341 (1974); M-984 (1971). Accordingly, TDC is authorkzed to require its employees to complete one year of employment beEore they may become eligible to receive hazardous duty pay. SUMMARY Article 6252-2X,, V.T.C.S., authorizes the Texas Department of Corrections to require its employees to complete one )'ear of employment before they may become eligible t3 receive hazardous duty pay. L-l-b Very truly your , . JIM MATTOX Attorney General of Texas JACK HIGHTOWER First Assistant Attorney General MARY KELLER Executive Assistant Attorney General p. 2428 Honorable Oscar H. Mauzy - Iage 4 (JM-548) RICK GILPIN Chairman, Opinion Committee Prepared by Tony Guillory Assistant Attorney General p. 2429