          THE     ATTOR,YEY           GENERAL
                        OF   TEXAS


                          May 29, 1987




Mr. Lawrence F. Alwin                Opinion No. JM-713
State Auditor
P. 0. Box 12067                      Re: Whether prior state service in
Austin, Texas   78711                a nonhazardous duty assignment may
                                     be used in calculating hazardous
                                     duty pay, and related questions

Dear Mr. Alwin:

     You ask for an interpretation of the following provision
governing hazardous duty pay for law enforcement personnel of specific
state agencies:

            All commissioned law enforcement personnel of
         the Department of Public Safety, all commissioned
         law enforcement personnel of the State Purchasing
         and General Services Commission, all commissioned
         security officers of the State Treasury, all
         commissioned law enforcement personnel of the
         Texas Alcoholic Beverage Commission, all law
         enforcement officers commissioned by the Texas
         Parks and Wildlife Commission, all commissioned
         peace officers of state institutions of higher
         education, and all law enforcement personnel
         commissioned by the Texas Department of Correc-
         tions, and all employees or officials of the Board
         of Pardons and Paroles who have routine direct
         contact with inmates of any penal or correctional
         institution or with administratively released
         prisoners subject to the board's jurisdiction are
         entitled to hazardous duty pay of $6 a month%
         fiscal year 1982 and $7 a month commencing in
         fiscal year 1983 and thereafter for each year of
         service in the respective agency, up to and
         including 30 years in service. This hazardous duty
         pay shall be in lieu of existing hazardous duty or
         longevity pay. (Emphasis added).

V.T.C.S. art. 6252-20b.




                               p. 3304
Mr. Lawrence F. Alwin - Page 2   (JM-713)




     You ask the following question concerning this provision.

             Under the terms of article 6252-2Ob, can prior
          state service in a nonhazardous duty assignment be
          utilized in calculating the amount of hazardous
          duty pay to which an employee is entitled?

      This statute provides that the personnel named in the provision
are entitled to hazardous duty pay of $7 a month beginning in fiscal
year 1983 "for each year of service in the respective agency, up to
and including 30 years in service." This language requires that all
of the individual's years of service for his agency, in nonhazardous
as well as hazardous duty assignments, be included in determining the
amount of hazardous duty pay to which he is entitled. The final
sentence of article 6252-20b. V.T.C.S., indicates that "hazardous duty
pay ,I' as defined therein, is synonymous with what has been called
"longevity pay" or "hazardous duty pay" in other contexts. A review
of the legislative treatment of longevity pay prior to the enactment
of article 6252-20b, V.T.C.S., supports our conclusion.

     Article 6252-ZOb, V.T.C.S., was enacted in 1979. Acts 1979, 66th
Leg., ch. 211, 41, at 456. The bill which enacted article 6252-20b,
V.T.C.S., repealed former article 6252-20a. which read as follows:

             All commissioned law-enforcement personnel of
          the Department of Public Safety, all commissioned
          law-enforcement personnel of the State Board
          of Control,   all   commissioned   law-enforcement
          personnel of the Texas Alcoholic Beverage Commis-
          sion, all law-enforcement officers commissioned by
          the Texas Parks and Wildlife Commission, all
          commissioned peace officers of state institutions
          of higher education, and all law-enforcement
          uersonnel commissioned bv the Texas Department of
          Corrections shall be paid as longevity-pay $4 per
          month for each year of service in the respective
          agency, up to and including 25 years in service.
          This longevity p y shall be in lieu of existing
          longevity pay. (aEmphasisadded).

Acts 1975, 64th Leg., ch. 477, §I, at 1274. Before 1975, provisions
authorizing longevity pay for state law enforcement officers were
found in the general appropriations act. See, e.g., Attorney General
Opinion Nos. R-256, R-198 (1974); C-140 (1963); w-1152 (1961). A
subcommittee of the House Committee on State Affairs reported that
article 6252-20a. V.T.C.S., was new legislation for "prolonged loyal
service by officers of state law enforcement agencies." Report of
Sub-Committee on R.B. No. 218, before House Committee on State
Affairs, Feb. 26, 1975, filed in Bill File to H.B. No. 218, 64th Leg.,
Legislative Reference Library.




                                 p. 3305
Mr. Lawrence F. Alwin - Page 3      (JM-713)




     The Bill Analysis of the 1979 enactment which repealed article
6252-20a, V.T.C.S., and replaced it with article 6252-20b. V.T.C.S.,
stated as follows:

          BACKGROUND INFORMATION

             Currently, certain commissioned law enforcement
          personnel receive as longevity pay four dollars
          Per month for each year of service in their
          respective agencies, up to and including twenty-
          five years of service.

          PURPOSE OF THIS BILL

             This bill would repeal the existing longevity
          pay statute and replace it with a hazardous duty
          pay statute which would provide certain commis-
          sioned law enforcement personnel with a monthly
          hazardous duty pay of $5 for each year of service
          up to and inclul  dinp,
                               _ thirty
                                      _ Years
                                         _     of service.
          (Emphasis added).

Bill Analysis to S.B. No. 586, prepared for House Committee on State
Affairs, filed in Bill File to S.B. No. 586, Legislative Reference
Library. Both longevity pay and hazardous duty pay are described in
terms of a monthly amount "for each year of service." The Bill
Analysis does not distinguish between service in hazardous duty
positions and other service for the agency. The legislation increases
the monthly supplement, lengthens the maximum period of compensable
service, and substitutes "hazardous duty pay" for "longevity pay"
without a change in meaning. The Fiscal Note to this legislation
states as follows:

          The bill, as engrossed, would increase the
          hazardous duty pay from four dollars to five
          dollars per month for each year of service, and
          increases the maximum compensable service period
          from 25 to 30 years for the law enforcement
          personnel of the following agencies. . . .

Fiscal Note, of April 4, 1979, Bill File for S.B. No. 586, Legislative
Reference Library.    Thus, the fiscal note treats the bill as
increasing the amount of supplemental pay but not changing the kind of
service required.

     An Appropriations Act provision considered by a 1974 Attorney
General Opinion based longevity pay for game wardens on "length of
service in law enforcement":

             It is expressly provided that the Parks and
          Wildlife Department pay longevity to Commissioned




                                   p. 3306
Mr. Lawrence F. Alwin - Page 4   (JM-713)




         Game Wardens up to and including the grade of
         Captain. The amounts to be paid to each in-
         dividual position shall be based on the length of
         service in law enforcement of Game Laws within the
         Department. . . . (Emphasis deleted).

Acts 1973, 63rd Leg., ch. 659, art. III, at 2013. Attorney General
Opinion H-198 (1974) determined that it was "necessary for a
commissioned game warden to be actually engaged in enforcement of the
game laws to qualify for a longevity increase under this appropriation
rider." Article 6252-2013.V.T.C.S.. does not place this limitation on
service which qualifies for hazardous duty pay.

     You next ask:

         Under the terms of article V. section 2(c), of the
         General Appropriations Act, when an employee
         transfers from one state agency to another, can
         prior state service in a nonhazardous duty
         assignment be considered in calculating the amount
         of hazardous duty pay to which an employee is
         entitled?

     Article V, section 2(c), of the current General Appropriations
Act provides as follows:

             C. When a state employee who receives hazardous
          duty pay for law enforcement activities moves to a
          position in another state agency which entitles the
          employee to the same hazardous duty pay he shall be
          granted credit for the total amount of state
          service contributing to eligibility for hazardous
          duty salary payments.

Acts 1985, 69th Leg., ch. 980, art. V. 52(c), at budget 475 (V-30).

     Article 6252-2Ob. V.T.C.S., expressly provides that commissioned
officers of specific agencies are entitled to a certain amount of
hazardous duty pay "for each year of service in the respective
agency. . . .'I (Emphasis added). The underlined language means that
the law enforcement officer's hazardous duty pay is based on his years
of service with the specific agency that employs him and pays his
hazardous duty pay.      The quoted language of article 6252-20b,
V.T.C.S., may be contrasted with language describing the entitlement
of other state employees to longevity pay. Article 6813d, V.T.C.S..
provides state employees

          longevity pay of a maximum of $4 per month
          for each year of service as an employee of
          the state up to and including 25 years of
          service. . . . (Emphasis added).



                                 p. 3307
Mr. Lawrence F. Alwin - Page 5   (JM-713)




Under article 6813d. V.T.C.S., the individual's years of service with
the state, not merely with a particular agency of the state, are
considered in determining the amounf of longevity he will receive.

     Section 2(c) of article V of the Current General Appropriations
Act attempts to allow a state law enforcement officer to transfer his
credit for hazardous duty pay from the state agency where he earned it
to another agency which employs him in a position entitling him to
hazardous duty pay. The purpose end result of this Appropriations Act
provision is contrary to that of article 6252-2Ob, V.T.C.S., which
limits hazardous duty pay to the amount earned in serving a particular
state agency.

     It is well established that an Appropriations Act provision may
detail, limit, or restrict the use of funds appropriated in the act,
but a rider to the Appropriations Act may not conflict with general
law. See Tex. Const. art. III, 135; Jessen Associates, Inc. v.
Bullock7 531 S.W.2d 593, 600 (Tax. 1975); Moore v. Sheppard, 192
S.W.2d 559 (Tax. 1946); Attorney General Opinion Nos. m-407, JM-343
(1985); V-1254 (1951). The quoted rider found at article V, section
2(c) of the current Appropriations Act is inconsistent with article
6252-2Ob, V.T.C.S.. and is therefore invalid. A version of this rider
appeared in the 1973 General Appropriations Act at a time when
longevity and hazardous duty pay were controlled by the Appropriations
Act. Acts 1973, 63rd Leg., ch. 659, art. V, $2(b), at 2196. This
rider predates articles 6252-20a and 6252-20b. V.T.C.S., and was not
deleted or rewritten to conform to those general laws.

     You finally ask:

         Do the more restrictive Appropriations Act riders
         of the Parks and Wildlife Department and Alcoholic
         Beverage Commission conflict with the general law?

     The following rider is appended to the appropriation to the Parks
and Wildlife Department:

             It is expressly provided that the Parks and
          Wildlife Department pay hazardous duty pay to all
          commissioned law enforcement personnel of the
          department. The amounts     to be paid to    each
          individual position shall be based on the length
          of service in law enforcement within the depart-
          ment at the rate of Seven Dollars ($7) per month
          for each year of service up to and including
          thirty years of service.

Acts 1985, 69th Leg., ch. 980, art. I, rider 6, at budget 154 (I-147).
This rider attempts to base hazardous duty pay on "the length of
service in law enforcement within the department. . . ." It is
inconsistent with article 6252-20b, which requires hazardous duty pay



                                 p. 3308
Mr. Lawrence F. Alwin - Page 6      (JM-713)




to be based on all service in the agency. To the extent the rider
conflicts with article 6252-2Ob. V.T.C.S., it is invalid.

     The following rider applies to the Alcoholic Beverage Commission:

             Funds appropriated above include hazardous duty
          pay and may be paid to any of the following
          commissioned law enforcement personnel:

             Chief, Enforcement and Marketing Practices
             Assistant Chief, Enforcement and Marketing
                Practices
             District Supervisor
             Assistant District Supervisor
             Senior Agent
             Agent III
             Agent II
             Agent I

             Hazardous duty pay shall be based on length
          of service in the commissioned law enforcement
          positions listed above, and shall be paid at a
          rate of Seven Dollars ($7) per month per year for
          each year of service through thirty (30) years of
          service.

             It is further provided that individuals in the
          following classified positions who are receiving
          hazardous duty pay as of August 31. 1981, shall
          continue to receive hazardous duty pay for the
          biennium ending August 31, 1987.       Individuals
          hired for the following positions after August 31,
          1981, are not entitled to receive hazardous duty
          pay:

             Port of Entry Supervisor
             Port of Entry Inspector II
             Port of Entry Inspector I
             Supervising Auditor II
             Supervising Auditor I
             Auditor III
             Auditor II
             Auditor I
             Assistant Director, Auditing and Tax Reporting
             Senior Tax Auditor (Emphasis added).

Acts 1985, 69th Leg., ch. 980. art. I, rider 7, at budget 29 (I-22).
This provision, like the rider to the Parks and Wildlife appropria-
tion, attempts to base hazardous duty pay on length of service in law
enforcement positions. To the extent the rider does so, it is invalid
because it is inconsistent with general law.


                                 p. 3309
Mr. Lawrence F. Alwin - Page 7   (JM-713)




     The above rider is inconsistent with article 6252-20b, V.T.C.S.,
in another way. The general law provides that "all commissioned law
enforcement personnel of the Texas Alcoholic Beverage Commission . . .
are entitled to hazardous duty pay. . . .* V.T.C.S. art. 6252-20b.
Article 6252-2Ob. V.T.C.S.. gives commissioned law enforcement
personnel of the Alcoholic Beverage Commission a right to hazardous
duty pay while the rider appears to make it discretionary with the
agency.   Finally, the Alcoholic Beverage Commission rider lists
specific commissioned law enforcement personnel who may receive
hazardous duty pay and certain classified employees who receive or do
not receive hazardous duty pay depending on their employment. We do
not know if this list includes all the commissioned law enforcement
personnel of the Alcoholic Beverage Commission. See Attorney General
Opinion H-198 (1974). Nor do we know if the classified positions
listed are all law enforcement positions or if the responsibilities
attached to those positions have changed so that they no longer will
be law enforcrmenc positions after the dates stated in the rider.
However, we can conclude that the rider is inconsistent with article
6252-2Ob, V.T.C.S., and therefore invalid, to the extent it denies
hazardous duty pay to persons who are commissioned law enforcement
officers of the agency or provides it to persons who are not law
enforcement officers.

                            SUMM~ARY

              Article 6252-20b, V.T.C.S., provides hazardous
         duty pay to law enforcement personnel of specific
         state agencies, based on all service for that
         agency. Article V, section 2(c) of the current
         General Appropriations Act, which purports to allow
         transfer of credit for hazardous duty pay from one
         agency to another, is invalid because it is incon-
         sistent with article 6252-20b. The riders on
         hazardous duty pay found in the appropriations to
         the Parks and Wildlife Department and the Alcoholic
         Beverage Commission are invalid to the extent they
         conflict with article 6252-20b. V.T.C.S.




                                       JIM     MATTOX
                                       Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General




                                 p. 3310
                                              .

Mr.   Lawrence F. Alwin - Page 8   (JM-713)




JUDGE ZOLLIE STEAKLEX
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




                              p. 3311
