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).
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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
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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).
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,*
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
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