The Attorney General of Texas
November 10, 1983
JIM MATTOX
Attorney General
Gary E. Miller, M.D. Opinion No. ~~-94
Supreme Court Building
P 0. BOX 12548
COSlQliSSiO~S~
Austin. TX. 7*71t- 2546 Texas Department of Mental Re: Salaries for persons
5121475-2501 Health and Mental Retardation discharging duties of
T&x 910/674-t367 P. 0. Box 12668 positions as "acting"
Telecopier 5121475.0266
Austin, Texas 78711 holders thereof
714 Jackson, Suite 700
Dallas. TX. 75202-4506 Dear Dr. Miller:
2141742-8944
You have asked about the salary to be paid someone who discharges
4024 Alberta Ave.. Suite 160
the duties of an office or position as an "acting" functionary rather
El Paso, TX. 79905.2793 than as the duly appointed incumbent thereof.
9151533-3464
The salaries for most employees and officers of the state of
Texas are fixed by the biennial appropriations act in conjunction with
r‘?l Texas, Suite 700
.uston, TX. 77002.3111
article 6252-11, V.T.C.S., the Position Classification Act of 1961, as
7131223-5866 authorized by article 6813b. V.T.C.S.
Section 2 of the Position Classification Act specifies:
806 Broadway, Suite 312
Lubbock. TX. 79401.3479
All regular, full-time salaried employments within
6061747.5236
rcertain agencies and departments appropriated
money by the general appropriations act] shall
4309 N. Tenth. Suite B conform with the Position Classification
McAtlen. TX. 7B501.1SB5 Plan . . . and with the salary rates and
5121662-4547
provisions of the applicable Appropriations Act
commencing with the effective date of this Act,
200 Main Plaza. Suite 400 with the exceptions and deferments hereafter
San Antonio. TX. 78205.2797 provided . . . . (Emphasis added).
5121225.4191
However, one who serves in an "acting" capacity, by definition,
An Equal Opportunity/ is not engaged in a regular employment. He performs the duties of an
Affirmative Action Employer office or position to which he does not himself claim title. See
State Bank of Williams V. Gish, 149 N.W. 600 (Iowa 1914); State ex rel
Gossett V. O'Grady, 291 N.W. 497 (Neb. 1940). The term connotes a
temporary designation, rank or position. See Pellecchia v. Mattia. 1
A.Zd 28 (N.J. 1938); Capibianco V. Civil Service Commission, 158 A.Zd
834 (N.J. Super. 1960). Thus, the salary paid one serving in an
"acting capacity" need not conform to the Position Classification Plan
unless some statute other than article 6252-11 requires it. SIX?
Attorney General Letter Advisory No. 1 (1973). -Cf. Attorney General
Opinion W-1317 (1962).
p. 400
Dr. Gary E. Miller - Page 2 (JM-94)
Article 6813b, V.T.C.S., does not expressly refer to the Position
Classification Plan, but it does specify that
all salaries of all State officers and State
employees, including the salaries paid any
individual out of the General Revenue Fund, shall
be in such sums or amounts as may be provided for
by the Legislature in the biennial Appropriations
Act.
The current general appropriations act does not speak directly of
salaries to be paid parsons temporarily discharging responsibilities
in an uactingu capacity. It does state, however, that a "promoted"
employee is to receive an increased salary, Acts 1983, 68th Leg., ch.
1095, art. V, §le, at 6196, and states that any classified employee
may, during emergencies or other special circumstances, be temporarily
assigned to other duties for periods not to exceed three months. Id.,
art. V. §lk, at 6197.
The appropriations act defines a promotion as a change in duty
assignment within an agency from a position in one classification to a
position Untitled Texas Attorney General Opinion
Combined Opinion