Honorable David Wade, M.D. Opinion NO. M- 1155
Commissioner, Texas Department of
Mental Health and Mental Retardation Re: Authority, if any,
P. 0. Box 12668, Capitol Station of Texas Department
Austin, Texas 78711 of Mental Health and
Mental Retardation
to make payment in
cash to its employees
who are subject to
the federal Fair
Labor Standards Act
for authorized over-
time, and related
Dear Dr. Wade: questions.
In your recent request for an opinion of this office,
you submitted the following questions:
"1. Is the Texas Department of Mental Health
and Mental Retardation authorized to make payment
in cash to its employees who are subject to the
provisions of the Fair Labor Standards Act for
authorized overtime?
"2 . Is the Texas Department of Mental Health
and Mental Retardation authorized to make payment
in cash to the appropriate person for authorized
overtime properly accrued to an employee at the
time of his death or separation from employment
with this Department?
"3 . If the answer to the aforesaid questions
is in the affirmative, then from what appropriated
funds may such cash payments be made?"
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Honorable David Wade, M.D., page 2, (M-1155)
Your first question is answered in the affirmative.
Article III, Section 44 of the Texas Constitution pro-
vides, in part, that
"The Legislature shall . . . /InotJ grant, by
appropriation or otherwise, any amount of money out
of the Treasury of the State, to any individual, on
a claim, real or pretended, when the same shall not
have been provided for by pre-existing law."
Pre-existing law for the payment of base salary plus
overtime for your employees covered by the provisions of the
Fair Labor Standards Act is supplied by the 1966 amendments to
that Act. See Attorney General's Opinion No. M-341 (1969).
The authority for paying overtime in cash is provided
in Article V, Section 2, Subdivision d, of the current General
Appropriations Act (S.B. 11, Acts 62nd Leg., R.S. 1971, as
amended by S.B. 7, 62nd Leg., 1st C.S., 1971, P. V-32, 3793).
Subdivision d reads, in part, as follows:
II. . . . Provided, however, that any agency or
institution, subject to the Fair Labor Standards Act,
as amended, is authorized to reimburse employees for
all authorized overtime by granting compensatory time
as specified above or by paying money from funds
appropriated by this Act at the rate of 1% times the
regular rate for the overtime performed."
Your second question is answered in the affirmative.
The authority to make payment in cash is set out in our answer
to your question No. 1. Your question asks whether you have
authority to include payment for authorized overtime properly
accrued at the time of death or separation of the employee
from employment with the department.
Overtime pay is not a separable stipend. It is part
and parcel of the compensation called for in the employee's
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:
Honorable David Wade, M.D., Page 31 (M-1155)
contract, and is properly payable, if accrued, at the time the
base pay is paid. The employee has a vested right in overtime
pay the moment it accrues under his contract of employment.
Your third question brings into consideration Sec-
tion 6 of Article VIII of the Texas Constitution. That section
provides that no money shall be drawn from the Treasury but in
pursuance of specific appropriation made by law.
In our opinion the necessary specific appropriation
for overtime pay is provided by the same appropriation that
provides for regular pay of the employee. The designation
given this sum will no doubt vary from institution to institu-
tion. Each employee's warrant, including his overtime, should
be charged to that fund.
See National Biscuit Co. v. State, 135 S.W.2d 687,
page 693 (Tex.Sup. 1940). wherein it was said:
"As just stated, one of the provisions of
Section 6 of Article 8 of our Constitution re-
quires all appropriations of money out of the
State Treasury to be specific. It is settled
that no particular form of words is required :o
render an appropriation specific within the
meaning of the constitutional provision under
discussion. It is sufficient if the Legislature
authorizes the expenditure by law, and specifies
the purpose for which the appropriation is
made. . . ."
Conceivably an institution which had not planned
on paying in cash for overtime might run low on funds in the
item to which salary and bvertime are charged. There is some
measure of relief in Article II, Section 15, Subdivision c,
of the Current General Appropriation Act (S.B. 11, Acts of
62nd Leg., R.S. 1971, as amended by S.B. 7, 62nd Leg., 1st
C.S. 1971, P. 11-48, 3489), which reads as follows:
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. .
Honorable David Wade, M.D., page 4, (M-1155)
“C . It is the intent of the Legislature that
the appropriations made herein to the Department
of Mental Health and Mental Retardation and to
institutions and agencies under its jurisdiction
shall be expended as nearly as practicable for the
purposes specified; however, upon a finding by the
Board of Mental Health and Mental Retardation that
any funds in excess of the needs for which they
were appropriated could be used more efficiently
and effectively for other purposes for which
appropriations have been made, said Board is hereby
authorized to transfer any such excess from one
item of appropriation to another.
"It is provided, however, that no such trans-
fer shall be made from appropriations for salaries
of classified positions."
SUMMARY
-------
The Texas Department of Mental Health and
Mental Retardation is authorized to make payment
in cash to its employees who are subject to the
provisions of the Fair Labor Standards Act for
authorized overtime.
The Texas Department of Mental Health and
Mental Retardation is authorized to make payment
in cash to the appropriate person for authorized
overtime properly accrued to an employee at the
time of his death or separation from employment
with this Department.
Payment of overtime shall be made from the
same fund or account to which appropriation is
i’ made for payment of the employee's base pay.
i :’
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Honorable David Wade, M.D., page 5, (M-1155)
truly yours,
ey General of Texas
Prepared by James S. Swearingen
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Reeves
Michael Stork
S. J. Aronson
Robert Lemens
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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