The Attorney General of Texas
March 23, 1981
Honorable John J. Kavanagh, M.D. Opinion No. !4?J-311
Commissioner
Texas Department of Mental Health Re: Overtime compensation for
and Mental Retardation employee of the Department of
P. 0. Box 12666 MWMR who holds a full-time and a
Austin, Texas 78711 part-time job at the same facility
Dear Dr. Kavanagh:
You have requested our opinion ss to whether article 5165a, V.T.C.S.,
and article V, section 2e of H.B. 558, the General Appropriations Act, Acts
1979, 66th Legislature, chapter 643, at 2896, require overtime compensation
~to be paid to an MH/MR employee who holds a full-time and a part-time
position with the same MWMR facility. We will assume that state law
permits such dual employment.
Article 5165a, section 1, V.T.C.S., provides that:
All state employees who are employed in the offices
of state departments or institutions or agencies, and
who are paid on a full-time salary basis, shall work
forty (40) hours a week. Provided, however, that the
administrative heads of agencies whose functions are
such that certain services must be maintained on a
twentyfour (24) hours per day basis are authorized to
require that essential employees engaged in per-
forming such services be on duty for a longer work-
week in necessary or emergency situations.
Article V, section 2e of House Bill 558 provides as follows:
OVERTIME. When a regular, full-time employee is
required to work hours in excess of the standard work
week established for the positton m accordance wth
applicable statutes, the employee shall be entitled to
compensation for such overtime either: (1) by
receiving equivalent time off during the same
biennium. . . or (2) at the discretion of the
employing. . . agency. . . by receiving pay at a rate
equivalent to one and one-half times the regular rate
of pay. . . . Administrators shall except specific
p. 990
Honorable John J. Kavanagh - Page Two (MN-311)
executive, administrative and professional positions. . . from
these provisions. (Emphasis added). Acts 1979, 66th Lag., ch.
843, art. V, S2e, at 2698.
Excepted from the overtime provisions are “professional medical personnel and
employees employed in a bona fide executive, administrative or professional
capacity.” We assume that the full-time position to which you refer is classified
within the Position Classification Plan and that the employees in question are not
exempt from the overtime provisions of H.B. 556.
An employee who holds a full-time position at an MHIMR facility and works in
excess of 40 hours per week in that full-time position is clearly entitled to overtime
compensation. The question is whether hours worked by a full-time MH/MR employee
in a separate, part-time position at the same MWMR facility constitute “hours in
excess of the standard work week established for the position” by article 5165a,
V.T.C.S.
There is a dearth of case law in this area. One of the submitted briefs cites
cases arising tmder the Fair Labor Standards Act, 29 U.S.C. sections 201-219, s
Hodgson v. Penn Packing Co., 335 P. Supp. 1015(E.D.Pa. 197B, and certain Texas cases
dealing with overtime compensation,e.+ City of Temple v. Brown, 383 S.W. 2d 639
(Tex. Civ. App. - Austin 1964, writ dmm d); City of Wichita Falls v. Cox, 300 S.W. 2d
317 (Tex. Civ. App. - Fort Worth 1957, writ rePd n.r.e.1; Campbell Cleaning and Dye
v 163 S.W. 2d 253 (Tex. Civ. App. - El Paso 1944, writ rePdX However,
these cases are not helpful. Aside from the fact that the minimum wage and
maximum hour provisions of the FLSA are not binding upon the states, National
League of Cities v. Usery, 426 U.S. 633 (1976), the overtime provisions of the FLSA
are quite different from those of the General Appropriations Act. The Texas cases
which are cited are inapposite. And our own research has disclosed no case which is
on point.
Our objective in construing the overtime provisions of the General Appropria-
tions Act must be to ascertain and give effect to the legislature’s intent. Jessen
Associates, Inc. v. Bullock, 531 S.W. 26 593 (Tex 1975). Intent must be ascertai-
examining the entire enactment Citizens Bank v. First State Bank, 580 S.W. 2d 344
(Tex. 1979). When the overtime provisions are clceel~ scrutinized, it becomes
apparent that the legislature addressed nothing more than the issue. of overtime
compensation for regular, full-time state employees who work additional hours in the
fulltime position in which they are employed. There is nothing to indicate that it
even contemplated a situation involving an employee who puts in more hours than his
full-time position calb for, but in a separate, part-time position in which he chooses
to work We decline to hold that such an employee is entitled to overtime for the
hours worked in the part-time position absent any evidence that the legislature
intended this result or, for that matter, even considered the question. See State v.
Standard, 414 S.W. 2d 148 (Tex. 1967); Gilbert v. State, 437 S.W. 2d 44mex. Civ.
App. -Houston B4th Distl 1969, writ rePd n.r.e.) (legislative grants of rights or
privileges are construed strictly in favor of state; anything not unequivocally granted
in clear and explicit terms is withheld).
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Honorable John J. Kavanagh - Pege Three @h’-311)
We therefore conclude that an MH/MR employee who hol& a full-time and a
part-time position at the same MH/MR facility is not entitled to overtime for the
hours worked in the part-time position.
SUMMARY
Article 5l65a, V.T.C.S., and article V, section 2e of the
General Appropriations Act do not entitle an MH/MR employee
who holds a full-time and a part-time position at the same
MH/MR facility to overtime for the hours worked in the part-
time position.
vQ.vtrzg
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
Susan L. Garrison, Chairman
Jon Bible
Lucius Bunton
Rick Gilpin
p. 992
Untitled Texas Attorney General Opinion
Combined Opinion