THEATTORNEYGENERAL
OFTEXAS
AUSTIN. TEXAS
June 14, 1949
Hon. Robert S. Calvert
Comptrollerof Public Accounts
Austin, Texas
Opinion No. V-845
Re: The legality of paying the
15% supplementalsalary
under H:B. 197, 51st Leg-
islature,to University of
Texas employees who had
previouslyhad a salary
increase since Sept. 1,
1947.
Dear Sir:
Your letter requestingan opinion states:
"House BillNo. 197 as passed by the
resent RegularSession of,the Fifty-First
Eegislature~made~a.supplementalappropria-
tion to increase the salaries of State offi-
cials-and employees whose salaries are pro-
vided for in-house Dill~No. 246, Acts of the
Begular.Session.of,~theFiftieth Legislature
for thenp~eriodbeginning with the effective
date of the Act and ending August 31, 1949.
"The following'questionshavearisen as
to~the use of the moneys appropriatedby Rouse
~Bill~.No.197, supra:
l'a. Is the Comptroller legally author-
ised to issue a warrant in payment of a claim
~fora~current salary,where~theBoard of Re-
gents of the University of Texas has since
September 1 1947~and prior to the enactment
of House Bill No. 197 increased such salary
and where the fifteen percent (15%) increase
authoriaed under House Bill No. 197 plus the
amount increasedby the Board of Regents ex-
Hon. Robert S,,Calvert, Page 2 (v-845)
ceeds $37.50. The $37..50is the maximum a-
mount that any.~singl.e.salary.,may
be increased
by House ~~Bill
NO. 197.~forany one month.
"b. Uay themBoard of Regents of the Uni-
versity.of.Texas userthe.moneys appropriated
by House Bill No,.197, supra, to increase a
salary.thatis paid out.of local funds of the
University.
"C. May the Boardsof Regents of the Uni-
versity of Texas use.the moneys appropriated
by House Bill No. 197, supra, to create new
positions.n
H. B. 197 provides in part as follows:
Vrovided, however that the supplement
herein provided~forshail be based upon the
salary,,schedulesin effect on September 1,
1947, at the various higher educationalinsti-
tutions covered by House Bill.No. 246, and
that,if salarks have been increased since that
data, regardlessof the source or sources from
which such increase may have been provided,
,theincreaseshare~inallowed and appropriated
for shall,be.limited.to the differencebetween
,theschedule herein provided and the increase
ineffec,tsubsequent~ to September 1, 1947."
Your first question involves,the problem of de-
termining ,whetheror not the-above proviso places a lim-
citationon the amount individua~,salariesmay be increased
by.the Board of Regents of The Unive~rsityof Texas where
such increasa.,ispayable out of funds allowed and appro-
,priatedby H. B. 197. Although the,phraseology of this
proviso is not clear,.we thinkthat when the proviso is
given a literal inter~pretationas.well as when it is con-
..sider.ed
in connectionwith other provisions in H. B, 197,
there is revealed anyintention of the legislaturenot
thereby to limit.indiv~idualsalary,increasesbut rather
to limit the aggregateamount authorized to be used by
the governing board of~~eachinstitutionto augment sal-
aries of~all officialsand employees eligible for an in-
~cre,ase
under H. B. 197.
Thus co,nstrued,
the above proviso has only the
Hon. ~RobertS. Calvert, Page 3 (V-845)
following effect: (1) it requires that the schedule of
salaries in effect on September 1, 1947, at the insti-
tution be used in determiningthe supplementto be made
available for the use of the institution (this supple-
ment~is anyamount equal to 15% oftall salaries and por-
tions of all salariesup to and-including#3 000); (2)
it places a limit on the.amounttofthis supplementau-
thorized to be used by an institutionwhere salaries
have been increased~sinceSeptember 1, 1947. The amount
~thusavailable to such institution.foraugmenting sal-
aries is to be determined,bytaking the difference be-
tween the schedule provided in H. B. 197 (the supplement
as~above defined) and the ~aggregateincrease in salaries
-made since September 1, 1947, regardless of the source
orsource,s from which such increase may have been pro-
vided. Under this~proviso the ,totalamount authorized
to be used by an institutionfor augmentingsalaries is
decreased where salaries~have been increased subsequent
to September 1, 1947, and prior to the enactment of
H. B. 197, but no limitation is placed on the amount
any individual salary may be.augmentedby the governing
board.
The paragraph followingthe above proviso
states:
nit is the specific purpose of this Act
to appropriateforthe use of the several
State higher educationalinstitutionscov-,
ered by said House Bill No. 246, for use in
supplementingsalaries and/or wages, the
respective amounts equal to fifteen per cent
(15%) of,all salaries and portions of all
salaries~up.toand including Three Thousand
U liars ($3 000) of the amounts appropriated
f& salarie: in said House Bill No. 246.
a 0 .IV (Emphasisadded throughout.)
Here again the term "1578 is used in the sense of an ag-
gregate amount and not as a limit on an individualsal-
ary.
Another section of H. B. 197 provides that
*the amounts ~(are)to be made available to the institu-
tions in lump sum and,inthe same manner and subject to
the same general provisionscovering'salariesas con-
tained in House Bill No. 246." In Hi B. 246 the salary
Hon. Robert S. Calvert,.Page4 (v-845)
appropriationsfor,educationalinstitutionswere also made
in lump~sums and not itemised...One~
of the general pro-
visions of H..,.B.
246 provides:
e&e board of regents or directors with-
intheir discretion Andywith good reason may
make such,changesand substitutionswithin the
~totalsfor ~salariesas may be found necessary,
.and.areautho~rized~to~transferitems or
of ~items,providsd.thatthe total sum to t:fifid
for salaries out of this appropriationshal not
exceed.thetotal amount appropriatedfor sal-
aries.n
This provisiongiv,es,tothe Board of ,Regentsof The Uni-
veraity of.Texas the authority~todetermine the salary
.&each offic.ial~and employee of the institutionwithin
the limit of the t~otalamountappropriated. By providing
that the amounts made.available.byH..B, 197 are to be
n.subje.ct
.to~thensame general pro.v.isions
covering sal-
,.ariea,as.cont.ainedinkuse Bill.R0~;~246,~ it appears
that the legislature intended that the~~Boardof Regents
should likewise.haveeauthority t.odeterminethe amount
the salary of each official and~employeeis to be aug-
,mente.d,the totalssu plement av.ailable to TheT~;i~a;;ity
.,~ofTexas,by H..B.~.lgf being t~heonly,limit.
that the ~amountismade availab1.e ina lump sum and not
itsmised lends supportsto this construction.
The.follawingprovision in H. B. 197 also sup
ports this construction:
"The governing board of the higher educa-
tional institutionsshall bave full authority
to use~supplementsherein appropriatedto pro-
vide as nearly as possible, and yet as equit-
ably as possible salary supplementsup to but
not to exceed, fifteen per cent (15%) of afl
salaries and portions of all salaries up to
and including Three Thousand Dollars ($3,000)
for all positionsCo.veredin the first two
paragraphsof this Section.n
This provisiondoes not place any limit on the amount
each individual~s~salary~may be augmented..1rfstead.i.t
gives full authority to the governing~board of tne in-
stitutionto~provide equitablesalar supplementswhich
shall total in the aggregate as nearIy as possible but
notexceed, l#of "all - salaries and portions of &
:
Hon. Robert S. Calvert, Page 5 (V-845)
~salaries*up to and including $3,000 for all positions
-covered by the Act.
There being,no limitation in H. B. 197~on the
amount each ~individual'ssalarymay be augmented, but
only ,alimitation on the aggregatesamount available to
each institutionfor use in supplementingsalaries, it
is our op~inionthat.the Comptroller is legally author-
ised to issue a warrant in.paymentof a claim for a cur-
"rentsalary where the.Board of Regents of The University
of Texas has increased such salary s.inceSeptember1,
1947, and prior to~the enactment of H. B. 197, even
though the.inc~rease.
given.under H. B. 197 plus the prior
inc.rease.
exceeds $37.50 per month.
The Board of Regents may use the moneys appro-
priated by H. By.197 to increase a~salary that is paid
out of localfunds oftthe University. H. B. 197 pro-
vides:
"No ~increasesshall begparticipatedin by
,anyof .theState.~,officials
or employees on pay-
rolls from funds other than State appropria-
,tions,wholly or in part, except that said in-
creases may be paid,~.ratably~
from State appro-
priated funds and the~balanceof said increases
herein provided, if paid..,shall
come from such
funds other than State appropriations. . . .)(
This exception applies only to State officialsand em-
ployees whos,esalaries are payable in whole or inrlrt
nfrom funds other than State .appropriations."
fundsof The,Universityof Texas are "State appropria-
tions" and thus do no-tcome within the above exception
having been~appropriatedby..Suhse.ction(3) of H. B. 244,
which provides in part:
"* a 0 all proceeds . . . from the sale of
materials, crops and~supplies,from fees, and
any and all other rece~ipts~shall become and are
,herebyappropriat~ed as maintenance or contingxt
-to under the direction and
with the approval of the governing board having
~jurisdiction. .~. . Any balance remaining to
the credit of any of said +stitutional local
funds at said institution#or i,nthe State YE;:-
ury, at the end of any fi cal year is hereb
PO riated for the,above mentioned purposes or
*ding year."
Hone.Robert S. Calvert, Page 6 (V-845)
There.is no authority for the Board of Regents
of ~The,Univereityof T,exas~tous~ethe moneys ap ropriated
byeH. B. 197 .o.create new poaitians. H. B. 19f states:
"It is the genaral purpose of this ap-
propriation-toincrease~~the~current salaries
of State off.iciala.andState employeeshold-
ing positionsaa~of~the affe.ctive date of
thia,~Act and who may hold such positions be-
tweenne.akeffe.ctivedate and August 31, 1949.
. . .
Itis evident~fromthis~provisionthat H. B.
197~was~far,the~-purposeroof
providing~an increase in sal-
aryfor,~only..those~
State~.officialsand employees satis-
fying the .followingconditionsof,~employmen~:~(1) they
must ~b.e
~holdingsuch position as of the effective date
of.the act, u,(2.).they must hold such position between
said sffective~datesand August 31, 1949. A person hold-
ing a.position created.afterthe effective date of the
act could not.satisfy thenfirst condition and thus would
not .be~
eligible-forany incr~ease provided by this act.
The Comptrolleria authorizedto issue a
warrant in payment of a claim for the current
salary of an employee covered in H. B. 197
where the salary of such employee has been in-
creased since September 1, 1947, and prior to
H. B. 197, even though the increase given un-
der H. B. 197 plus the prior increase exceeds
$37..50 er month. The Board of Regents of The
Universfty of Texas may~use the moneys appro-
riated by H. B.,197 to increase a salary that
E'
s paid.out of local funds of the University,
but,may not.use thesesmoneys~to create new
positions.
Yours very truly,
ATTORNEY GENERAL
JPL/lg