THE ATCOECNEJC GENEP~AL
OlF?&lXAS
February 3.9, 1969
Honorable Robert S. Calvert Opinion No. M- 341
Comptroller of Public Accounts
State Capitol Building Re: Authority for payment of
Austin, Texas overtime In cash to state
employees covered by
Federal Wage and Hour
Dear Mr. Calvert: Laws.
Your request for an opinion on the above subject
matter poses the following questions:
The United States Supreme Court In Maryland v. WI&z,
88 S.Ct. 2017 (1968), held that the 1966 amendments to the Fair
%a;; Standards Act as they applied to employees of states were
. Therefore, such amendments constitute pre-existlng law
within the meaning of Section 44 of Article III of the Constitu-
tion of Texas, authorizing the legislature to make appropriations
to pay employees of the state covered by the Fair Labor Standards
Act,-,~(md to pay at a higher rate for overtime work.
However, Section 6 of Article VIII of the Constitution
of Texas provides that no money shall be drawn from the Traasury
the Treasury except pursuant to a specific appropriation, in
view of the provisions of Section 6 of Article VIII, Constltu-
tlon of Texas.
In Texas Department of Public Safety v. Morris, m,
the court stated:
“In its judgment the trial court recited
as a ground for the rendition of the judgment
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Hon. Robert S. Calvert, page 2 (M-341)
the failure of the Department to pay costs
adjudged against It by this Court on a for-
mer appeal. We do not approve this portion
of the trial court Is judgment. The Depart -
ment is prohibited from making any payment
except in pursuance of a apeciflc appropria-
tion of funds by the legislature by Article
VIII, Section 6, of the Texas Constitution.
Pickle v. Finley, 91 Tex. 484, 44 S.W.
486 {Tex. 1898).
“While the costs were properly taxed
against the Department, payment can only be
made from funds appropriated for that purpose
by the leglal@ure, and the State, or an
agency thereof, will not be penalized by its
Inability or failure to make such payments.
Hout ch&ns v, State, 74 S.W.2d 976 (Tex.Com.
App. 1934, opinion adopted); Ibanez v. State,
123 S.W.2d 704 (Tex.Civ.App., El Paso 1939)
Reed v. State, 78 S.W. 2d 254 I(Tex.Civ.App.,
Austin 1934), error dismissed.
Therefore, while employees of the state covered by
the Fair Labor Standards Act of Congress will have a valid claim
against the state for the payment of overtime In caeh; neverthe-
less, before such payment may be made, the legislature must ap-
propriate money for said purpose. The current General Appropria-
tions Act (House Bill 5, Acts 60th Legislature, 1st Called Session
1968) does not contain an appropriation from which overtime pay
may be made. Subdivision e of Section 2 of Article V of the General
Appropriations Act provides as follows:
“e . OVERTIME. In order to reimburse em-
plo ees for work performed in excess of forty
(403 hours in any one week, it Is required that
compensatory time be granted at the rate of 1 l/2
times the overtime performed within the seme month
(pay period), that said overtime wae accrued. In
the case of hospital employees, said employees
shall be reimbursed with compensatory time at the
rate of 1 l/2 times the overtime .accrued In ex-
cess of eighty (80) hours over a fourteen (14)
day consecutive period.
“This provision shall not apply to medical
personnel and employees employed in a bona fide
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Hon. Robert S. CalVert , Page 3 (M-341)
executive, admlnlstratlve or profeeslonal capacity,
Including any employee employed In the capacity of
academic administrative personnel or teacher In
elementary or aecondarg echoola. Compensatory
time for those employees excepted from this pro-
vision ahall be determined by the Admlnlstrator
of the agency or Institution involved,”
While the above quoted provision8 of the General Ap-
propriations Act authorize compensatory time to be granted for
work performed overtime, such provision doe8 not authorize the
withdrawal of additional money from the state treasury to pay
8uch overtime claims.
Therefore, you are advised that Payment of overtime
in cash to state employees Is not Permitted in the absence of
a specific appropriation for said purpose. Individuals covered
by the 1966 Congressional amendment to the Fair Labor Standard8
Act do have a valid claim against the State for the ainount of
money due them for overtime work performed.
SUMMARY
Payment of overtime In cash to state employee8
covered by the 1966 Congfesslonal Amendmelit to the
Fair Labor Standard8 Act is not authorized alnce
the legislature has not made an aporoorlatlon for
the payment of 8UCh. Article VIII-, section 6, con-
stitution of Texae. Such lndlvlduals have a claim
against the State for the payment of such overtime
Pay.
Y9t98 very truly,
Prepared by John Reeve8
Assistant Attorney General
APPROVED:
OPINION COMMITTES
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L *
Hon. Robert S. Calvert, page 4 (M-341)
Kerns Taylor, Chairman
George Kelton, Vlce-Chalrman
Malcolm Quick
Arthur Sandlln
Lonny Zwiener
Bob Crouch
W. V. GEPPFRT
Staff LegaZ'Assistant
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