Untitled Texas Attorney General Opinion

THE ATNBRSEY GESERAL OF?l?ExAS ( AUUTXN. TKXAU 7iB7ll July 25, 1975 The Honorable M. James Merits, D. D. S, Opinion No. H- 648 Secretary-Treawrsr Tcxar State Board of Dental Examiners Rc: Propriety of rupplemental Capital National Bank Building Balary for parttime executive Auetin, Texar 70701 recretary for Texae State Board of Dental Examiners Dear Dr. Morite: You have arked our opinion about the legality of ralary aupplementr made by the Board of Dental Examiner8 to compensate ita part-time Executive Secretary for additional dutier assumed at the requccrt of the Board. Those additional duties concerned the administration of the dental laboratory and dental technician regie.tration program mandated by article 4551f Q 6, V. T. C. S., which wae enacted by the 63rd LegMature in 1973. The State Auditor has queationed the legality of the payments already made for rupplemental ralary, and the State Comptroller has refused to honor voucherr for further payments. Section 6 Article 4551f, V. T. C. S., require6 dental laboratorier and dental technician8 to register with the Texas State Board of Dental Examiners each year, and to pay a fee “to the Dental Registration Fund. ” It creates the Dental Laboratory Advisory Board to advise the Board of Dental Examiners about matters concerning dental laboratories and dental technician*. The 1973 Act further pro- vided: The income received from fee8 adthoiiced by thicl Act io hereby appropriated to the Texar State Board of Dental Examiner@ for the fircal yearn ending 1974 and 1975 for its expenditure0 for the implementation of thir Act and for the purpoeer lirted in the General Appropriations Bill as parred by the 63rd Legislature. Acts 1973, 63rd Leg., ch. 65, $ 3. The “Dental Regirtration Fund” ir a creature of an earlier rtatute, article 4550a. rection 3 of which provider that all annual regirtration feer collected by the Board of Dental Examiner8 are to be placed in the State Treasury to the credit of the Fund, that all expenditure1 from the fund rhall be “for. the purporea and in the amounta fixed by the Legirlature in the general appropriationa billa, ” and that the p. 2845 The Honorable M. Jamer Morits, D. D. S. - Page 2 (H-648) State Board of Dental Examiners shall be authorized to employ and to compensate from such special funds employees and such other persons ‘I. . . to assist the local prosecuting officers . . . and to carry out the other purposes for which said fund is hereby appropriated. ” As amended in 1961, section 4 of article 4550a, authorizes the Board to employ an Executive Secretary “to aid the Board in per- forming the duties prescribed in this Section” and empowers the Board to fix his salary to be paid out of the “Dental Registration Fund. ‘I It requires the Executive Secretary to give bond for the faithful performance of his duties and for “the safe- keeping and proper disbursement of said ‘Dental Registration Fund’ and all other funds coming into his hands. ‘I Cf. Attorney General Opinion O-4676 (19421. After enactment of section 6 of articF455lf, the Board of Dental Examiners directed that all functions of the Advisory Board would be handled through the central office of the Board of Dental Examiners (Board Minutes, Nov. 3, 1973). In Januar the Board of Dental Examiners and the Laboratory Advisory Board unanimous ----+- y approved assignment’- to the part-time Executi’ve Secretary of the Board of Dental Examiners of the major responsibility folp administrative ‘functions pertaining’ _ to the Dental Laboratory Advisory Board and its work for a salary of “$500 per month beginning September, 1973. ” (Board Minutes, Jan. 13-14, 1974). The current General Appropriations Act, (Acts. 1973,63rd Leg. , ch. 659, p. 1952) specifies the following for the Board of Dental Examiners: BOARD OF DENTAL EXAMINERS For the Years Ending August 31, August 31, 1974 1975 Out of the Dental Registration Fund: Personal Services-- 2. Executive Secretary [part-time) 12,000 12,500 The amounts specified above are appropriated from revenues received during ea.& year ,of. the bienniuti beginning with. the effective date of this Act, and from any balances on hand at the beginning of each ,fiscal year of such bi,ennium‘in ,the’Dental R&&ration Funa (No. 86). Attorney General Opinion H-553 (1975) cited authority to the effect that statutea which provide for the compensation of public officers are to be construed in favor of the government, and concluded that artiule 6813b, V. T. C:S. precluded the salary supplementation considered there. That 1965 statute (which repealed inconsistent laws and parts of laws) reads in part: p. 2046 The Honorable M. Jamer Morite, D. D. S. - Page 3 (H-648) Section 1. From and after the effective date of thir Ac t,a ll lalarier of all State officerr and State employeer, including the ralarier paid any individual out of the General Revenue Fund, shall be in ouch sumr or amounta ae may be provided for by the Lcgirlature in the biennial Appropriationr Act. Ii ir rpecifically declared to be one of the intentr hare- .. of tliat the Legirlature shall al60 fix the amount of rupplemen- tal lalariee hereafter, out of court feer and receiptr, to be prtd to the clerks and other employeeo of the Courtr of Civil : Appealr, the Supreme Court and the Court of Criininal Appeals. It ir further provided that in inrtancer wheie the . biennial Appropriation8 Act doer not rpecify or regulate the ralarier or compenration of a State official or employee, the law specifying or regulating the ralary or compenration of luch official or employee ie, not rurpended by thin Act. We rlro quoted article 3, rection 44 of the Texan Conrtitution which readr: The Legirlature rhall provide ey law for the compenration of all officers, servant%, agent% and public contractors, not provided for in thim Conrtitution, but #hall not grant extra com- penration to any officer, agent, servant, or public contractor% after much public rervice #hall have been performed or con- tract entered into, for the performance of the rame; nos grant, by appropriation or otherwire, any amount of money out of the Treasury of’ the State, to any individual, on a claim, real or pretended, when the rame rhall not have been provided for by pre-exirting law; nor employ any one in the name of the State, unlerr authorized by prc-exirting law. We believe there provirionr control. Although partr of article 45508 and meetion 6 of article 455lf are rueceptible of other interpretationr, they murt be read, if pormible, in a manner conmimtent with article 6813b and the conrtitutional language. Madden v. Hardy, 50 S. W. 926 (Tex. Sup. 1899); Allen v. Davir, 333 S. W. 2d 441 rr C’ A -- Amarillo. 1960, no writ). In Madden v. Hardy the Supreme Co% o;‘+eE raid: We have under conrideration a statute, the conrtruction of which in very difficult. One conrtruction would give to the offictal some compenration for hir lervice in addition to hir salary. The statute admitm of another conrtruction which would not have thir effect. In much a case the latter rhould be adopted. 50 S. W. at 928. p. 2047 , The Honorable M. Jamer Morita, D. D. S. - Page 4 (H-648) That portion of article 455Oa which authorises the Board to fix the salary of the Executive Secretary must be read in light of the portion allowing expcndi- tures from the Dental Regimtration Fund “in the amounts fixed by’the Legislature in the general appropriations bills. ‘I Accordingly, in our opinion the Board is authoriced to fix the salary of the Executive Director only within the limits set by the Legislature in the general appropriations act. Section 6 of article 4551f, appropr,iating dental laboratory and dental tech- nician registration fees to the Board of Dental Examiners “for its expenditures for the implementation of this Act and for the purposes listed in the General Appropria- tions Bill, ” does not expressly permit the Board to supplement the salary of its part-time Executive Secretary;or if it did, there are no rtandardm to guide the Board in determining the additional amount which’might be allowed. See Attorney General Opinion H-553 (1975). The general rule is that an officer is entitled to no additional compensation for discharging additional duties assigned to him unless the law expressly allows it. 47 Tex. Jur. 2d Public Officers 5 177. We are aware of no different rule to be applied to “part-timaces or positionr. The Executive Secretary of the Board ir charged with the proper disposi- tion of the Dental Regiutration Fund from which his ialary ir paid. Article 4550a, section 3 specifies that expenditures from the fund shall be “for the purposes and in the amountr fixed by the Legislature in the General Appropriations Bills. ” We do not believe the Legislature intended that the srlary it fixed for the part-time Executive Secretary could be increased to suit the pleasure of the Board if the duties assigned to him by the Board of.Examiners were changed to include some re- rponsibility for the newly created: Advisory Board. So far as we have been inform- ed, he remained a part-time Executive Secretary even after assuming the addition- al duties. In Attorney General Opinion O-1006 (1939) Attoiney General Mann was asked to construe provirions in the then-current General Appropriations Act havir.3 to do with “partdime” and “full -time” positions. On page 6 of that opinion, and or. subsequent pages, are these parsager: It appears to us that the Legislature evidently . . . considered alI salaiicd positions nairied’.in the Act be clarmified aa [“full-time” poritions], unless it had otherwise provided by designating a particular position a~ a ‘part-time’ one. The Legislature is presumed to have known exactly what was in the Act . . .. In connection with what we have just laid, we call p. 2040 The Honorable MA. James Moritz, D. D.S. - Page 5 (H-648) your attention to the fact that the Act makea . . . specific appropriations for part-time employees . . . . [ s]uch appropriations are as follows: State Board of Dental Examiners, item 2, ‘Secretary part-time $1060’; . . . (Emphasis added) . . . Those listed above are definitely part- time employeea Some of them are not ex- pected to work full-time each day, but only a part thereof. . . Their positions are espe- ctally created by a specific appropriation made for that purpose. It seems to us that the Legislature has, by the Act under review, made a particular, definite, limited and precise appropriation for each and every salaried position provided for therein . . . . Consequently, in our opinion, the State Auditor and the State Comptroller of Public Accounts are correct in treating the salary supplement paymentwas unauthoriaed by law. SUMMARY Salary supplement payments to the part-time Ex- . ecutive Secretary of the Board of Dental Examiners in excess of the salary fixed by the General Appro- priations Act are unauthorized. *Very truly yours, Attorney General of Texas . p. 2849