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