                                ATTORNEY GENERAL OF TEXAS
                                              GREG        ABBOTT




                                                 August 24, 2009



Major General Jose Mayorga                                 Opinion No. GA-0736
Adjutant General of Texas
Post Office Box 5218                                       Re: Whether the Adjutant General and the
Austin, Texas 78763-5218                                   Assistant Adjutants General may accrue state
                                                           compensatory leave (RQ-0796-GA)

Dear Major General Mayorga:

       You seek our opinion on whether the Adjutant General and the Assistant Adjutants General
may accrue compensatory leave. 1 Your request results from an investigation and report by the State
Auditor's Office ("SAO") confirming the use of state emergency leave by senior members of the
Adjutant General's Department ("Department") while serving on federal military orders.2 See
attachment to Request Letter - State Auditor's Office, An Investigative Report on The Adjutant
General's Department at 1 [hereinafter "SAO Report"]. The SAO Report recommends that the
Department "[0 ]btain a legal determination from the Office of the Attorney General regarding the
accruing of compensatory leave by the Adjutant General and the Assistant Adjutants General as the
head of an agency and as appointed officials." Id at 7.

        We first examine statutory provisions pertaining to the Adjutant General and the Assistant
Adjutants General. The "adjutant general is the head of the adjutant general's department and
controls the military department ofthe state." TEx. GOV'TCODEANN. § 431.022(a) (Vernon 2005).
His authority is subordinate only to the Governor in "matters pertaining to the military department
of the state and the state military forces." Id; see also id. § 431.001(3)-(4) (Vernon Supp. 2008)
(defining "state military forces" and "Texas National Guard" so that the state's military includes the
Texas Army National Guard, the Texas Air National Guard, and the Texas State Guard).


         lSee Request Letter at I (available at http://www.texasattorneygeneral.gov).

          2The SAO Report indicates that "general officers within the Department's command group .... received full
state compensation while serving on active duty on federal military orders" because of state emergency leave. SAO
Report at 1. The SAO Report indicates that the Department's general counsel "issued an opinion concluding that the
practice was not compatible with state law." Id at 5. The Department conducted an internal audit to calculate the
amount of state salary to be repaid and used a formula that replaced an individual's emergency leave hours used with
the individual's accrued annual and compensatory time balances. See id. at 6 (calculating repayment formula for
Adjutant General using 425 hours of compensatory leave). The SAO Report questioned the use of compensatory time
in the formula and, citing subsection 659 .024(c) of the Government Code, asserted that the "repayment calculations may
be understated because these positions may not be entitled to earn compensatory leave." Id at 6.
Major General Jose Mayorga - Page 2             (GA-0736)




       Chapter 431 also provides for two Assistant Adjutants General. See id. § 431.026. An
Assistant Adjutant General for army and an Assistant Adjutant General for air are appointed by the
Governor on the recommendation of the Adjutant General. See id. § 431.026(a). The Assistant
Adjutants General "shall aid the adjutant general by perfonning assigned duties." Id. § 431.026(d).
The Assistant Adjutant General senior in rank "shall perfonn the duties of the adjutant general" in
the event that theAdjutant General is "dead, absent, or unable to act." Id.

        Chapter 659, Government Code, contains provisions concerning compensation for public
officers and employees. See generally TEx. GOy'T CODE ANN. §§ 659.001-.308 (Vernon 2004 &
Supp. 2008). In particular, subchapter B of chapter 659 authorizes a state employee's accrual of
overtime compensation and compensatory time. See id. §§ 659.015 (Vernon 2004) (overtime
compensation for employees subject to Fair Labor Standards Act), 659.0 16 (overtime compensation
for employees not subject to FLSA), 659.023 (providing compensatory time policy). Relevant to
your question, subsection 659.024(c) is an exception providing that "[a] member of the governing
body of a state agency or a single state officer who governs a state agency may not accrue
compensatory time under this subchapter [B] or another state statute." Id. § 659.024(c). Subsection
659. 024(c) applies by its express tenns to "a member of the governing body of a state agency" or "a
single state officer who governs a state agency." Id. § 659.024(c). As the Department is not run by
a governing body, the operative language is "a single state officer who governs a state agency." Id.
§§ 659.024(c) (Vernon 2004),431.022 (Vernon 2005) (providing that the Adjutant General is "the
head of the adjutant general's department").

         Because section 659.024 does not define the phrase "a single state officer who governs a state
agency," we must construe the phrase to detennine whether the Adjutant General or the Assistant
Adjutants General fall within its scope. Id. § 659.024 (Vernon 2004). "[T]he Texas Supreme Court
explained that the detennining factor that distinguishes one who hold a public' office' from one who
merely holds public employment is whether any sovereign function of the government is conferred
upon the individual to be exercised ... for the benefit of the public largely independent ofthe control
of others." State ex reI. Hillv. Pirtle, 887 S.W.2d 921,931 (Tex. Crim. App. 1994) (en banc) (citing
Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578,583 (Tex. 1955»; see also Prieto Bail Bonds
v. State, 994 S. W.2d 316,320 (Tex. App.-EI Paso 1999, pet. ref d) (using Aldine standard); but see
TEx. GOy'T CODE ANN. § 659.003(a) (Vernon 2004) (defining "officer" for limited purposes of
section authorizing officer to decline compensation). The tenn "govern" commonly means to
"conduct the policy, actions, and affairs of (a state, organization, or people)." THE NEW OXFORD
AMERICAN DICTIONARY 734 (2001); see also TEx. GOy'TCODEANN. § 311.011(a) (Vernon 2005)
(providing that "[w]ords and phrases shall be read in context and construed according to the rules
of grammar and common usage"). Finally, a "state agency" for purposes of section 659.024 includes
a "department ... in the executive branch of state government" that is created by state law. TEx.
GOy'T CODE ANN. §§ 658.001 (2) (Vernon 2004), 659.024(a) (utilizing definition of "state agency"
in subsection 658.001(2». Based on these definitions, we construe the phrase "a single state officer
who governs a state agency" to refer to an individual who exercises a sovereign function of the
government for the benefit of the public largely independent ofthe control of others and who directs
and controls the policy, actions, and affairs of a department in the executive branch of the state
government that is created by state statute.
Major General Jose Mayorga - Page 3                 (GA-0736)



         With this construction of subsection 659.024(c), we turn to your question. The Adjutant
General is "the head of the adjutant general's department" and thus is in control of the military of
the state. Id §431.022(a)(Vernon2005)(emphasisadded). Cf Fischerv. Reissig, 143 S.W.2d 130,
131 (Tex. Civ. App.-Austin 1940, writ refd) (construing the article "the" to mean "one").
Moreover, the Adjutant General has exclusive authority over armories, facilities, and improvements
owned by the State on Department property. See TEx. GOV'T CODE ANN. § 431.0291(a) (Vernon
Supp.2008). Control of the state's military and its facilities is a sovereign function of government
that is for the benefit of the public. The Adjutant General exercises his power and discretion with
respect to the state military largely independent of the control of others. See id § 431.022(a)
(Vernon 2005) (providing that the Adjutant General is head of the Department and subordinate to
only the Governor). We therefore believe the Adjutant General is, under the Aldine standard, an
officer-Le, an individual who exercises a sovereign function of the government for the benefit of
the public largely independent of the control of others. 3 Chapter 431 identifies the Adjutant General
as the "head of the Department," thus it is the Adjutant General who controls the policy, action, and
affairs of, and so governs, the Department. See id §§ 431. 022(a) ("The adjutant general is the head
of the adjutant general's department. ... "),431.029 (identifying duties of the Adjutant General).
Finally, the Department is a department in the executive branch of the state government created by
state statute and thus a "state agency" under subsection 659 .024(c). See id § 431.021 (Vernon Supp.
2008) (identifying the Department as the Adjutant General's Department). For these reasons, we
conclude that the Adjutant General is a "single state officer who governs a state agency" precluded
by subsection 659.024(c) from accruing compensatory time.

       Our conclusion that the Adjutant General is a "single state officer who governs" the Adjutant
General's Department under subsection 659 .024(c) necessarily precludes a conclusion that the two
Assistant Adjutants General are also within the scope of subsection 659.024(c). Accordingly, we
conclude that subsection 659.024(c) does not prohibit an Assistant Adjutant General from accruing
compensatory leave.




       3Because the adjutant general is a state officer and not an employee under Aldine, subsection 659.024(b),
Government Code, does not apply.
Major General Jose Mayorga - Page 4         (GA-0736)



                                    SUMMARY

                     The Texas Adjutant General is a single state officer who
              governs a state agency and is, therefore, precluded by subsection
              659.024(c), Government Code, from accruing compensatory time.
              The same subsection does not preclude the Assistant Adjutants
              General from accruing compensatory time.




ANDREW WEBER
First Assistant Attorney General

JONATHANK. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
