             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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