THEATTORNEY GENE-L
OFTEXAS
Honorable J. W. Edgar, Opinion No. WW -2 11
Commissioner of Education,
Texas Education Agency, Re: Number of employees the Texas
Austin, Texas Education Agency may employ
with a salary rating in Salary
Group XIV. Article III; House
Bill 133. Acts 55th Legislature.
Dear Doctor Edgar: and other question.
You have requested the opinion of this Department on
two questions. The first is as follows:
The number of employees the Texas Education
Agency may employ with a salary rating in Salary Group
XIV. Article III. House Bill 133. 55th Legislature.
House Bill 133. Acts 55th Leg,islature, Regular Session.
Article III. chapter 385, page 973 (Biennial Appropriation Bill) states in
part:
“The proper officer or officers of the Texas
Central Education Agency are hereby authorized to make
application for and accept any other gifts, grants or al-
lotments from the United States Government or other
sources to be used on cooperative and .other projects
and programs in Texas. Any ruch Federal aad other
funds as may be deposited in the State Treasury are
hereby appropriated to the specific purposes author-
ized by the Federal Government and other contracting
Gganieations. and the State Board .of Education is au-
thorized to expend these funds in accordance with the
ter~ms ot the contract with the CPntractlpg agent.”
House Bill 133. Acts 55th Legislature, Regular Session,
Article III. chapter 385. page 987. sets a limitation of nineteen positions
in Salary Group XIV, NTE $8.000.00. We are advised that such nineteen
regular positions are filled by regular employers to be paid f,rom funds
appropriated to this Agency for performing the fur&ions provided in the
Agency budget.
House Bill 133. Acts 55th Legislature. Regular Session,
Article VI, chapter 385. page 1148. reads in part:
- .. j
Honorable J. W. Edgar, Page 2 (WW-211)
“Sec. 19. Federal Funds appropriated for use.
Any funds received by the agencies of the State named in
this Act from the United States Government are hereby
appropriated to such agencies for the purposes for which
‘the federal grant. allocation, aid, or payment was made,
subject to the provisions of this Act.”
Pursuant to a contract between Texas Education Agency
and the United States Office of Education for a federal grant to conduct a
research project in the area of Modular Design of School Buildings. the
Texas Education Agency desires to engage personnel thereunder without
regard to the provisions of Salary Group XIV quoted above.
We are of the opinion that the limitation of nineteen posi-
tions, as set out in Salary Group XIV, applies only to the performance of
work which is done to carry on the normal and usual functions by the em-
ployees in this group. As we view it, this provision does not contemplate
any work to be. done by virtue of specific federal grants outside the usual
scope of duty of employees within Salary Group XIV.
-Section 19 of the General Provisions-of House Bill 133.
as quoted above. is a broad and general provision and applies to all State
agencies. We believe that the appropriation therein of federal funds to
any agency, for the purposes for which the federal grant was made, “sub-
ject to the provisions of this Act,” does not limit the number of peoplr
who may be emDlOyed in pursuance of a contract made to carry out the
provisions of &e federal-grant, even though such a limitation is placed
on the Salary Group in which these proposed employees would normally
fall. It will be noted~ that the provision which authorizes the Agency to
make application for, and to accept federal funds for specific projects
and programs is just as much a part of House Bill 133 as is the provi-
sion which limits Salary Group XIV to nineteen positions. It can be con-
cluded, therefore, that the general provision appropriating the federal
funds to the Agency involved is. in fact, subject to the first quoted provi-
sion above, which authorizes the application and the acceptance of such
funds, and which provision is implemented by the contract between the
Agency and the United States Office of Education for the research project
specified.
We conclude, therefore, that the Texas Education Agency
is not limited in its employment of persons with a salary rating in Salary
Group XIV, House Bill 133. Article III. chapter 385. page 967, when such
additional personnel is employed to perform duties of a special nature in
pursuance of a federal grant for a particular project.
You have asked the further question:.
Whether or not “professional fees” as used in the
following provision. includes persons employed for educa-
tional services ?
._ -
Honorable J. W. Edgar, Page ! (WW-211)
House Bill 133, Acts 55th Legislature, Regular Session,
Article III. chapter 385, page 969,relating to’the General~Revenue Fund
of the Central Education Agency provides:
“Geueral administra~tion and supervision,, in-
cluding salaries, seasonal help, professional fees, . . :
to be expended in accordance with the operating budget
of the Texas Central Education Agency as adopted by
the State Board of Education. . . . .
The word ‘professional* originally contemplated only
theology, law. and medicine, but as applications of science and learning
are extended to other departments of affairs, other vocations also re-
ceive the name, which implies professed attainments in special knowl-
edge as distinguished from mere skills. Aulen v. Triumph Explosive,
D.C. Maryland, 58 F.Supp.. 4, 8. Our Texas courts have defined a ‘pro-
fession” as a “vocation, calling, occupation or employment involving la-
bor. skill, education, special knowledge and compensation or profit, but
the labor and skill involved is predominantly mental or intellectual, rath-
er than physical or manual. * h4aryland Casualty Company v. Crazy Wa-
ter Company, 160 S.W.Zd, 102 (Tex.Civ.App. 1942).
We are of the opinion that under this recent definition
of the word “profession” by the Texas Court, such term properly in-
cludes teachers, educators, and those persons employed for educational
services, who have attained a high degree of special knowledge and learn-
ing, where such knowledge is used by its practical application to the af-
fairs of others, either advising or guiding and in serving their interest
or welfare in the practice of an act founded upon it. where such work is
predominantly mental or intellectual.
SUMMARY
The Texas Education Agency is not limited
by the provisions of Salary Group XIV, House Bill
133. Acts 55th Legislature. Regular Session, Article
III, chapter 385, page 967, when such additional per-
sonnel is employed to perform work authorized by a
kpzel federal grant fez a particular project. Fur-
“professtonal fees may properly be paid to
pers’ons employed for educational services if such
Honorable J. W. Edgar. Page 4 (WW-211)
persons fulfill the requirements of a member of
a “profession”, as defined herein.
Very truly yours,
WILL WILSON
Attorney General of Texas
By &/6! +, v;
B. H. Timmins. Jr.
Assistant
BIiT:pf :cm
APPROVED:
OPINION COMMITTEE
H.’ Grady Chandler, Chairman
W. V. Geppert
Wallace Finfrock
REVIEWED FOR THE ATTORNEY GENERAL
By: Ged. P. Blackburn