Untitled Texas Attorney General Opinion

THE ATTORNEY GENERAL OF TEXAS Herbert C. Wilson Opinion No. M- 888 Deputy Commissioner State Department of Public Welfare Re: Compensation for hourly employees. R. L. Coffman Administrator Texas Employment Commission David Wade, M. D. Commissioner Texas 'Departmentof Mental~Health and Mental Retardation Gentlemen: Your joint request for an opinion reads as follows: "This is the official request of the State Department of Public Welfare, the Texas Employment Commission and the Texas Department of Mental Health and Mental Retardation hor a clarification of Opinion No. M-850 dated May 5.~1971. "Since the above Opinion was issued a question has arisen with regard to the authority of these three (3) agencies to pay a supplemental payroll out of the appropriations made to the 'respective agencies in the Appropriations Act. The payrolls in question are in payment of wages to hourly employees computed on an hourly basis. "House Bill No. 2, Acts of the 61st Legislature, Second Called Session, 1969, the General Appropriations Act for the biennium ending August 31, 1971, makes a specific lump sum appropriation to the Department of Public Welfare for 'seasonal help' (Article III, Page 169, Item 14). -4326- Herbert C. Wilson, page 2 (M-888) R. L. Coffman. David Wade, M. D. "House Bill No. 2, Acts of the 61st Legislature, Second Called Session, 1969, the General Appropriations Act for the biennium ending August 31, 1971, makes a specific lump sum appropriation to the Texas Employ- ment Commission for 'salaries of classified positions, professional fees and services, part-time and seasonal help, merit salary increases' (Article III, Page 64, Item ~9). "House Bill No. 2, Acts of the 61st Legislature, Second Called Session, 1969, the General Appropriations Act for the biennium ending August 31, 1971, makes specific lump sum appropriations to the various ad- ministrative divisions and to the facilities and in- stitutions under the jurisdiction and control of the Texas Department of Mental Health and Mental Retarda- tion for salaries of classified positions. Article II, Section 2, Paragraph d, Page 37, of the current Appro- priations Act provides as follows: '1t':isfurther pr~wided that appropriations for salaries of classified positions may be used to pay the wages of hourly workers when the utilization of such personnel is in the best interest of an economical and efficient program.' "Your opinion No. M-850 states that: I . . . where the Legislature has made a specific lump sum appropriation for hourly wages without placixqlimitations on the rate of pay to be paid hourly employees, then the head of the agency to whom the appropriation is made has the sole discretion to fix the hourly rate of pay for such employees . . .' "Cur respective agencies have for many years in- terpreted the specific appropriations cited above as authority to hire and pay employees on an hourly basis -4327- Herbert C. Wilson, page 3 (M-888) R. L. Coffman. David Wade, M. D. at a rate determined at the discretion of the agency. We believe this is in keeping with the case of Humble Oil and Refining Co. v. Calvert, 414 S.W.Zd 172, which points out that where there is any ambiguity in a statute the ,courtswill look with favor upon the longstanding construction by a State agency of an ambiguous phrase. "On the basis of your Opinion No. H-850, the State Comptroller has questioned this interpretation. "With respect to each of the agencies requesting this Opinion, do the above quoted lump sum appropria- tions authorize our respective agencies to hire and pay hourly employees from such appropriations and to fix the hourly rate of pay for employees hired on an hourly basis? *This joint request for an opinion is submitted in lieu of the request dated June 15, 1971, submitted .by the State Department of Public Welfare." In Attorney General's Opinion No. M-850 it was held: "Furthermore, in answer to your third and fourth questions, where the Legislature has made a specific lump sum ,appropriationfor hourly wages without placing limitations 'onthe rate of pay to be paid hourly em- ployees, then ,thehead of the agency to whom the appro- priation is made has the sole discretion to fix the hourly rate of pay for such employees. See for example, Item 24 of the appropriation to the Highway Department in the current General Appropriations Act (House Bill 2, Acts 61st Leg. 2nd C.S., 1969, at p. 770 ~of the Session Laws). *Summarizing the foregoing it is our opinion that the only limitations placed on an employee's salary by the Legislature are the annual salary appropriated by the Legislature and the monthly salary to be paid in twelve equal installments." -4328- Herbert C. Wilson, page~4 (M-888) .~. R. L. Coffman, David Wade, M. D. It is further.pointed outin.Attorney General's Opinion No; ~-850: .~ "The ~courts will ordinarily~.adoptand uphold departmentalconstruction by agencies charged with the responsibility ,forthe administration of a par- ticular statute , land such construction will not be overturned unless the construction is unreasonable or clearly wrong. 53 +Tex.Jur.Zd 259, Statutes Sec. 177; Humble Oil and Refining Co. v. ~Calvert, 414 S.W.,2d,l72 (Tex.Sup. 1967). This is particularly true in those'instances where ,statutoryprovisions shave been reenacted.without material change. The 'Legislature is presumed tohave~known of such con- struction and ~practice and.acquieeced in:ft by its failure to amend or change it. ~Burroushs v. Lvles, 142 Tex. 704, 181 S.W.Zd 570 (1944)." In the instant case y'our'respectiveagencies have for many years interpreted the specificappropriations cited in your request as authority to hire employees wn~.an hourly-basis and to fix the hourly rate of pay for such employees. The Legislature has acquiesced in such~departmental construction.. You are accordingly advised,&hat .such construction is in conformance with Attorney General's Opinion ~-850. supra, and each of the lump sum appropriations ,referred to in .your request authorizes the head of the respective agencies to.hire hourly employees. Furthermore, the head ~ofeach agency to whom the appropriation is made has the, sole.discretion tofix the hourly fate of pay for such.employees. . ~. ': ~.:~ S UMMARY Where the Legislature has made specific lump sum appropriations for hourly wages the head of the agency to whom the appropriation.is made has the sole discretion to fix the hourly rate of pay of- such employee. Attorney General'e Opinion M-850 (1971). -4329 - ,* Herbert C. Wilson, page 5 (M-888) R. L. Coffman, David Wade, M. D. Such specific lump sum appropriations for hourly wages have been made to the State Department of Public Welfare, the Texas Employment Commission, and the Texas Department of Mental Health and Mental Retardation. Y very truly, C. MARTIN Prepared by John Reeves Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns,Taylor, Chairman W. E. Allen, Co-Chairman Glenn Brown Houghton Brownlee Pat Bailey Fisher Tyler MEADE F. GRIFFIN Staff Legal Assistant' ALFREDWALKBR Executive Assistant NOLA WHITE First Assistant -4330-