                      August 31, 1965


Honorable John H. Winters                 Opinion No. C-495
Commissioner of Public Welfare
John HO Reagan Building                   Re:   Authority of the State
Austin, Texas 78731                             Department of Public
                                                Welfare to continue to
                                                operate under the Merit
                                                System Plan for employees
                                                of the State Department
Dear Mr. Winters:                               of Public Welfare.
         You have requested our opinion on the following question:
          "Is the State Department of Public Welfare
     authorized to continue to operate under the Merit
     System Plan in accordance with its agreement with
     the Federal Government?"
          You state in your request that the Comptroller of Public
Accounts is taking the view that the 59th Legislature failed to
provide for merit salary increases by deleting the words "merit
salary increases" from the provisions of the General Appropriation
Act authorizing salary adjustments in accordance with agreements
with the Federal Government.
          House Bill 86, Acts of the 58th Legislature (General
Appropriation Act for the biennium ending August 31 1965) provides
in a rider to the appropriation for the State Department of Public
Welfare appearing at page 111-186 of the bill:
          "Salary adjustments and merit system ln-
     creases shall be governed by agreements with
     the Federal Government provided, however, that
     such agreements do not exceed the provisions
     in this Act governing the operation of the
     State Employees Classification Plan."
          The above quoted rider appears In the appropriation to
the State Department of Public Welfare for the biennium ending
August 31 1967, at page 111-161 of the General Appropriation AC;
of the 59th Legislature, House Bill 12, Acts of the 59th Legis-
lature, Regular Session, 1965, reading as follows:


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Hon. John Ii.Winters, page 2 (c-495)


         "Salary adjustments within designated salary
    ranges for classified employees of the Department
    of Public Welfare shall be governed by agreements
    with the Federal Government pursuant to federal
    standards for a merit system of personnel adminis-
    tration. notwithstanding any other provisions of
    thisto-
    vided, however, that authorized positions in both
    the State Classification Plan and in line-items
    may be filled by two half-time employees each or
    by part-time employees on a proportional basis
    should the State Commissioner of Public Welfare
    find that the necessity therefor exists. Appro-
    priations for personal services and for other
    expenses may be used for the training of personnel
    whenever the Board of Public Welfare deems such
    training expense essential to the public service."
    (Emphasis added)
          The use of the Merit System by the State Department of
Public Welfare was first authorized in 1941 when the Legislature
enacted Article 695c, Vernon's Civil Statutes, and has continued
to date. Attorney General's Opinion C-172 (1963).   The Position
Classification Act of 1961 (Article 6252-11, Vernon's Civil
Statutes) provides that all Merit Systems authorized for certain
State agencies which operate under employee Merit Systems as a
condition for qualifying for federal grants-in-aid "as have been
made or may hereinafter be agreed to by the respective State
agencies and agencies of the U. S. Government shall be in full
force and effect, subject only to the applicable laws of this
State." In construing the provisions of Articles  69% and
6252-11, Vernon's Civil Statutes, together with the above
referred to rider contained in the General Appropriation Act
for the biennium ending August 31 1965, it was held in Attorney
General's Opinion No. C-172 (1963):
          "A consideration of all of the foregoing factors
     leads us to the conclusion that the Legislature was
     well aware that the Department's operation is sub-
     stantially affected by agreements with the Federal
     Government, and that it recognized the condition
     of a Merit System in order to qualify for such
     grants-in-aid.
          "Further, in viewing the Classification System
     broadly aa a plan to place all State employees of
     a same class on an equal basis as far as possible,
     we are unable to perceive how the continuation of
     the agreements with the Federal Government will
     violate this principle with the factin mind that
     the Department is already at a comparative dis-
     advantage salary-wise.
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Hon. John H. Winters, page 3 (C-495)


          "Therefore, in consideration of all of these
     factors, it is our opinion that the Department's
     agreement as set forth in the question presented
     is authorized and that a continuation of the Merit
     System is authorized."
          It is our opinion in view of the foregoing that the
provisions of the Appropriation Act of the 59th Legislature for
the biennium ending August 31, 1967, providing that salary
adjustments for classified employees of the Department of Public
Welfare shall be governed by agreements with the Federal Govern-
ment pursuant to federal standards for a Merit System of personnel
administration, authorizes a continuation of the Merit System in
accordance with the Department's agreement with the Federal
Government. Furthermore, the pre-existing law, Article 695c,
Vernon's Civil Statutes, and the Position Classification Act of
1.961.
     (Article 6252-11, Vernon's Civil Statutes) supports such
rider.
          Senate Bill 563 Acts of the 59th Legislature Regular
Session, 1965, Chapter 343, page 739, is an act permitting certain
Departments and Agencies to grant merit salary increases as pro-
vided therein. Sections 1 and 5 of Senate Bill 563 provide:
          "Section 1. It Is expressly provided that
     Departments and Agencies having appropriations
     for classified salaries and wages, may in addition
     to the salary adjustments described In Article V
     of House Bill No. 12, 59th Legislature, grant merit
     salary increases in recognition of 'meritorious
     service' as provided herein.
          "Sec. 5. This Act shall become effective on
     September 1, 1965, and shall cease to have any
     force and effect after August 31, 1967."
It is noted that the salary adjustments authorized by Senate Bill
563 are "in addition to the salary adjustments described in
Article V of House Bill No. 12, 59th Legislature" General Appro-
priation Act for the biennium ending August 31, 19fi
                                                   7) and in no
manner affects the Merit System of the State Department of Public
Welfare. On the contrary, it is merely an authorization for
merit salary increases in addition to those authorized by the
General Appropriation Act and merit system agreement of the De-
partment. You are therefore advised that the State Department
of Public Welfare may continue to operate under the Merit System
Plan in accordance with its agreement with the Federal Government.
          The foregoing is also applicable to the Texas Employment
Commission, the State Health Department and any other State Agency,
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                                                            -   -




Hon. John H. Winters, page 4 (C- 495)


Department or Board that operates under the Merit System Plan
agreement with the Federal Governme'nt.

                           SUMMARY
          The State Department of Public Welfare may
     continue to operate under the Merit System Plan
     in accordance with its agreement with the Federal
     Government. Article 69% and Article 6252-11,
     Vernon's Civil Statutes. House Bill 12, Acts
     of the 59th Legislature, Regular Session, 1965.
     Attorney General's Opinion C-172 (1963).
          The foregoing is also applicable to the Texas Employ-
ment Commission, the State Health Department and any other State
Agency, Department or Board that operates under the Merit System
Plan agreement with the Federal Government.
                                        Yours very truly,
                                        WAGGONER CARR
                                        Attorney .General



                                              John Reeves
                                              Assistant
JR:mcn
APPROVHD:
OPINION COMMITTEE
W. 0. Shultz, Chairman
Ralph Rash
Ivan Williams
Roger Tyler
J. C. Davis
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright




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