The Honorable Bob Bullock Opinion No. ~I-768
Comptroller of Public Accounts
Lyndon B. Johnson Building Re: Method by which
Austin, Texas 78774 salaries of state employ-
ees are to be calculated
when employees receive
pay for only part of a
month.
Dear Mr. Bullock:
you have requested our opinion concerning article V,
section 2(a) of the current appropriations act, Acts 1975,
64th Leg., ch. 743, p. 2417, which provides in part at page
2845:
All annual salaries appropriated by this
Act shall be paid in twelve (12) equal
monthly installments, except as other-
wise provided in Article II of this Act.
The equivalent hourly rate of pay
for annual employees maintaining a 40
hour work week and covered under Article
5165a, Vernon's Civil Statutes, as amended,
shall be determined by dividing the annual
salary by 2,080. This basis applies to
partial pay overtime and other special
situations. When a full-time or regular
part-time employee is on leave without
pay I compensation for that particular
pay period shall be reduced at the equi-
valent hourly,rate of pay times the num-
ber of work hours lost by leave without
pay.
p. 3241
.
The Honorable Bob Bullock - page 2 (H-768)
You have presented the following examples of the operation
of this provision:
EXAMPLES OF SALARY COMPUTATIONS PURSUANT TO
ART. V 8 2
All examples are based on an employee.receiving
a salary of $lZ,OOO.OO annually, $l,OOO.OO monthly
or $5.71 hourly.
Calculation for Partial Month's Pay:
1) An employee who works 22 days during a
month which has 23 working days will have
his pay computed as follows:
22 days x 8 hrs. x $5.77 per hr. = $1,015.52
or $15.52 more than the $l,OOO.OO he would
have received for working a full month.
2) An employee could work 21 Z/3 days during
a month containing 22 or 23 working days and
be paid $l,OOO.OO which is as much as an em-
ployee who worked the full month.
21.67 days x 8 hrs. x $5.77 per hr. =
$1,000.00
Calculation of Partial Month Due to Employee
being on LWOP (Leave Without Pay]:
1) During a month having 23 working days, an
employee on LWOP for 22 days will have his pay
computed as follows:
$1,000.00 - 22 days x 8 hrs. x $5.77 = -815.52
In this case, not only is he not paid for the day
worked, but he owes the statem5.52. If he had
been paid positively for the day worked, he would
have received $46.16.
p. 3242
The Honorable Bob Bullock - page 3 (H-768)
2) During a month having 21 working days, an
employee on LWOP for 19 days will receive
$122.96 using the negative method:
$1,000.00 - 19 days x 8 hrs. x $5.77 = $122.96
If he were to be paid on the partial month posi-
tive approach, the calculation would be:
2 days x 8 hrs. x $5.77 = $92.32
3) In certain cases such as maternity where an
employee may be on LWOP for 23 working days of
a 23 working day month, the calculation would
be as follows:
$1,000.00 - 23 working days x 8 hrs. x $5.77
= -$61.68
Instead of simply not being paid for the month
on LWOP, the employee owes the State $61.68.
4) According to the procedure as outlined in
Art. V, an employee on LWOP for 20 days during
a pay period of,20 working days could theoret-
ically be paid $76.80 even though no work
was actually performed:
$1,000.00 - 20 days x 8 hrs. x $5.71 per
hr. = $76.80
Positive Partial Month's Pay Calculation compared
to Negative LWOP Calculation for same Pay Period:
In a month with 21 working days, an employee work-
ing 18 days and terminating would receive the fol-
lowing compensation:
18 days x 8 hrs. x $5.71 per hr. = $830.88
An employee who also works 18 days in a month
with 21 working days and is on LWOP for 3 days
would receive the following compensation:
p. 3243
The Honorable Bob Bullock - page 4 (H-768)
$1,000.00 - 3 days x 8 hrs. x $5.77 per hr.
= $861.52
These examples clearly indicate that employees
working the same number of days in the same pay
period at the same pay scale can receive different
compensation.
In light of these problems, you ask:
1) Is the language of Article V, 8 2 pertaining
to the hourly rate calculation and the situations
to which it applies so inequitable and contradic-
tory so as to render it void?
. . .
3). . . [M]ay the Comptroller continue to use the cur-
rent method of hourly rate calculation for par-
tial pay, overtime, and leave without pay?
4). . . [M]ay the Comptroller use an alternative '
method which involves the same mathematical
concept, but is not a "yearly" hourly rate
as is demonstrated in Attachment B?
It is well established that where adherence to the
strict letter of a law would lead to injustice, absurdity,
or contradiction, the law should be given a reasonable
construction. Magnolia Petroleum Co; 5 Walker, 83 S.W.Zd
929 (Tex. Sup. T935]*~ 53 Tex.Jur.ZhStatutes 8 165. As your
examples indicate, a'strict adherence to section 2(a) can
result both in absurd, ridiculous, and unjust consequences
and in a violation of the minimum wage provisions of article
5159d, V.T.C.S. We do not believe the Legislature intended
section 2(a) to be so applied. To the contrary, we belleve
the Legislature intended the questionable and unworkable
provisions of section 2(a) to be directory rather than
mandatory. See Bishop v. Houston Independent School DistI.,
29 S.W.Zd 312T ‘
ex . sup. 1930); 53 Tex.Jur. Statutes S 15.
The Comntroller in the-exercise of his duty m FITper-
intend &e fiscal concerns of the State" should be guided
but not bound by the language of section Z(a). See V.T.C.S.
art. 4344, 8 3; Attorney General Opinion H-645 (m5].
p. 3244
_- -
The Honorable Bob Bullock - page 5 (H-768)
Thus, while section 2(a) is not void, the Comptroller need
not strictly adhere to its provisions concerning special
situations. If upon review of the operation of the proce-
dures contained in section 2(a) the Comptroller determines
them to be unworkable, in our opinion he may select other
reasonable procedures for computation of pay in special
situations. Accordingly, we answer your last two questions
in the affirmative.
SUMMARY
Article V, section Z(a) of Senate Bill
52, Acts 1975, 64th Leg., ch. 743, p. 2417,
should be construed by the Comptroller
as directory. If the procedures estab-
lished therein are determined to be un-
workable, the Comptroller may select
another reasonable method fok the
calculation of pay in special situations.
-Very truly yours,
APPROVED:
u Attorney General of Texas
Opinion Committee
jwb
p. 3245