Untitled Texas Attorney General Opinion

THE ATTORNEY GENERAL
OF TEXAS

December 15, 1988

Honorable Robert E. Davis Opinion No. JM-993
Chairman
Productivity Bonus Commission Re: Authority of the Pro-
P. 0. Box 12428, Capitol Station ductivity Bonus Commission
Austin, Texas 78711 created by article 6252-
29, V.T.C.S. (RQ-1459)

Dear Mr. Davis:

YOU ask a number of questions concerning the Productiv-
ity Bonus Commission, article 6252-29, V.T.C.S. We will
first describe the Commission and highlight its key
functions before discussing each of your questions.

The Commission is charged with administering a program
designed to produce savings for the taxpayers by reducing
the operating costs of state agencies through the improve-
ment of productivity by means of techniques specified in the
statute. See aenerallv V.T.C.S. art. 6252-29, § 6. The
Commission is composed of the comptroller of public
accounts, the State Auditor, the director of the Legislative
Budget Board, a member of the governor's staff, the
classification officer appointed under the Position
Classification Act of 1961 (art. 6252-11, V.T.C.S.), an
officer or employee of a political subdivision of the state,
and three persons from private industry who have experience
in the administration of incentive pay programs. V.T.C.S.
art. 6252-29, § 2(a).

State agencies in the executive and judicial branches
of the government, with the exception of the governor's
office and institutions of higher education, may elect to
participate in the program outlined in the statute by
submitting a plan that 'outlines a strategy . . . that, if
implemented, would cause the agency . . . to qualify for a
productivity bonus." Id. § 4(a). The Act contains
detailed instructions and criteria for the Commission to use
in determining whether an agency plan produces cost savings
in its yearly operations which qualify for a productivity
bonus. Id. §§ 5 and 6.. Bonuses actually awarded are pre-
sented to employees of the agency and result in an increase

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Honorable Robert E. Davis - Page 2 (JM-993)

of the funds available to the agency for its operations
during a subsequent fiscal year. & 5 9. A portion of any
cost savings accrued through increased productivity is to be
returned to the fund in the treasury from which the agency
receives appropriations. Id.

Finally,

[i]t is the intent of the legislature that a
state agency or a division of an agency that
reduces its cost of operations and qualifies
for a productivity bonus . . . may not be
penalized for those savings through a corres-
ponding reduction in appropriations for the
subsequent fiscal biennium.

V.T.C.S. art. 6252-29, 5 9(e).

You first ask whether the Productivity Bonus Act grants
powers of the executive branch to the Productivity Bonus
Commission.

The Productivity Bonus Commission is charged with very
specific duties involving the execution of a detailed
legislative mandate. Sea, e.a., V.T.C.S. art. 6252-29, §!j 7
and 8. Its executive powers are neither few nor de minimis.
$&8 Attorney General Opinion JW-141 (1984). The legislature
has expressly conferred authority upon the Commission to
execute the law and to determine the manner in which
appropriated funds are expended. It also has those powers
which are necessarily implied from the express grant of
authority. Railroad
* Commission f Texa Re d Arr ow
Freiaht Lines, Inc., 96 S.W.Zd 735 ;)Tex..Cit. zip. - Austin
1936, writ ref'd). The powers of the Commission thus are
wholly executive -- they will be used not for ceremonial or
advisory purposes, but to execute the law and provide for
the disbursement of appropriated funds in a pattern selected
by the Commission.

You next ask:

If the Commission is an executive agency,
does the composition of the Commission -- the
presence of members of the legislative branch
-- violate the doctrine of separation of
powers?

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.

Honorable Robert E. Davis - Page 3 (JM-993)

Article II, .Q 1 of the Texas Constitution provides for
the separation of powers between the executive, legislative,
and judicial branches.

The powers of the Government of the State of
Texas shall be divided into three distinct
departments, each of which shall be confided
to a separate body of magistracy, to wit:
Those which are Legislative to one: those
which are Executive to another, and those
which are Judicial to another: and no person,
c llection of nersons, being of one these
ZpaZtments, shall exercise any power
properly attached to either of the others,
except in the instances herein expressly
permitted. (Emphasis added.)

Tex. Const. art. II, 8 1. -
The doctrine of -separation of powers serves as a
"self-executing safeguard against the encroachment or
aggrandizement of one branch [of government] at the expense
of the other." Bu klev v. Valeo 424 U.S. 1, 122 (1976).
"No political trut: is certainly Af greater intrinsic value
or is stamped with the authority of more enlightened patrons
of liberty." Madison, The Federalist No. 47, p. 324 (Cooke
ed. 1961). "The purpose of separation and equilibration of
powers in general . . . [is] not merely to assure effective
government but to preserve individual freedom." Morrison v.
Olson, 108 S.Ct. 2597, 2637 (1988) (w the dissenting
opinion of Justice Scalia). See also ."Separation of
Powers," 4 Encyclopedia of the American Constitution 1659
(1986).

This office has consistently held that any attempt by
the legislature to supervise the implementation of statutes
through some means other than the normal legislative process
specified in sections 28 through 40 of article II of the
Constitution of Texas violates the doctrine of separation of
powers. Attorney General Opinions JM-872 (1988); MU-460
(1982); V-1305, V-1254 (1951); O-4609 (1942).

The State Auditor and the Director of the Legislative
Budget Board are officials of the legislative- branch of
government and they are answerable only to that branch. The
Auditor is appointed by the Legislative Audit Committee and
serves at the will of the Committee. Gov't Code g 321.005.
The Director of the Legislative Budget Board is appointed by

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 .

Honorable Robert E. Davis - Page 4 (JM-993)

the Board and is only accountable to, and serves at the will
of, that legislative agency. Gov't Code 5 322.004.

The doctrine of separation of powers does not prevent
effective coordination and cooperation between the
legislative and executive branches of~the government in the
effective resolution of public problems. State Board of
Insurance v. Betts, 308 S.W.Zd 846 (Tex. 1958). But the
legislature may not assume general authority to execute and
administer the laws. This principle is uniform throughout
American law. See e.a., -son v . Olson, suorq, I.N.S. v.
Chadha, 462 U.S. 919 (1985). Many of the cases from other
states supporting the doctrine are collected in Attorney
General Opinion JM-872 which concerned the impermissibility
of a legislative official -- the State Auditor -- supervis-
ing activities carried out by executive agencies in admin-
istering the law. The principle of separation of powers is
especially important when the legislature attempts to manage
the expenditure of funds'already appropriated:

[t]he Legislature is no longer authorized to
concern itself with the further . . . dis-
bursement of the funds, the constitutional
inhibition being not only against actual
usurpation of the function, but also against
one [branch] setting itself up in a supervis-
ory capacity over the actions of another.
[Citation omitted.]
****

[T]he fiscal administration of the affairs of
the government [is] an executive duty.

Attorney General Opinion V-1254 (1951), at 15. Thus, the
Productivity Bonus Commission is unconstitutionally consti-
tuted because some of its members are answerable only to the
legislature and share responsibility with executive officers
for executing the law.

Because the inclusion of officials answerable only to
the legislature in command of an executive agency violates
the doctrine of separation of powers, you ask whether the
Commission may continue to function if the legislative
officials occupy "advisory positions" only or abstain from
voting.

p. 5081
 Honorable Robert E. Davis - Page 5 (JR-993)

There is no authority for either proposition. The
statute certainly expects that the legislative officials
named to.the Commission will discharge their duties. These
tasks include deciding which agencies are entitled to
productivity bonuses and the amount of the bonuses to be
awarded. V.T.C.S. art. 6252-29, gg 8 and 9. Such duties
are not merely advisory but rather involve the exercise of
fact-finding and the application of discretion in executing
a public policy. Officials and officers of the state
government, consistent with their duties to the people, may
not pick and chose from among the duties they will execute.
Additionally, the mere q'advisory" presence of officials who
serve only at the will of the legislature in command of an
executive agency may lead to an improper encroachment of one
branch into the affairs of another.1 See Attorney General
Opinion JR-872 (1988).

You also ask:

Does the Commission have authority to make
the awards specified in the statute out of
funds already appropriated to the agencies or
their divisions, which participate in
productivity bonus plan when some of thz
appropriated funds are saved in connection
with the productivity improvements
contemplated by the Act?

Because we find that the composition of the Productivity
Bonus Commission is unconstitutional, we do not consider
this question.

1. This opinion should not be taken to mean that every
entity composed of members or officials of different
branches of the government is unconstitutional. Some
entities consisting of members from the different branches
of government may be authorized by the constitution. Other
bodies too numerous to list here have many duties that are
purely advisory or merely ceremonial and do not involve
detailed tasks requiring the exercise of discretion about
the expenditure of appropriated funds. In such a case, the
function of the body may be appropriate under the
constitution because nothing in the doctrine of separation
of powers prevents coordination and cooperation between the
C
branches of government.

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Honorable Robert E. Davis - Page 6 (JM-893)

SUMMARY
The Productivity Bonus Commission exer-
cises functions of the executive branch of
the Government. Because of the doctrine of
separation of powers, its composition may not
include officials appointed by, and only
answerable to, the legislature. Tex . Const.

J b
art. II, § -1.
Very truly yo

- k,
JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLBY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by D. R. Bustion, II
Assistant Attorney General

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