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            OFFICE   OF   THE   ATTORNEY     GENERAL         OF   TEXAS
                                    AUSTIN
GROVER   SELLERS
ATTORNEY   GENERAL




 Kooorrble Frank D. Quinn
 ~xeoutire   Dlraotor
 Tefar State Perks Board
 Auctin   11, Texan
 Dear Sir:




                                                            rubmittsd     to the
                                                           roller  for    payment.

                                                       n opinion      on the above

                                                       r    dated October 19
                                                       hr     of Public Ao-
                                             oard ic regard to our
                                             ropriatfonr  No. w-300
                                             with rererenoe to 1 ts


                            that   insofar   ae a specific   le islative
                             for   a salaried    osition   is coriceme
     \~$j$)rtion                    of Section’md            ale.

            -&&-&,           the payroll     in question is based on
                       set up by tae Legislative          ,udit Co.m:ttee
            for seasonal labor, not on 'any JOeitiOii            provided
            for  in this    act.’    ‘The so-called     Vappropristion*
            1.0. #;-5OG is not a salaried        position    aat u; by the
            Legislature--it       is merely an ‘accountw set up by
            the State Comptroller’r        Department, based on a
            *budget* ret up by the Legirlatire            Audit Committee.
;ioc. ~rullk 2.   +inn,   pace 2

           “Furthermore,   the Itams on the payroll    in !.uea-
      tion are for seasonal labor, and the elaployeee who
      are on said payroll are employed only aa needed,
      baaed on the aeaiaonal variations     of thruzof
      work involved    by thlr department.    In eubalttlng
      our budget to the Legislative    Audit Committee, it
      was rpeolfloally    underetood that raid ltene were
      aesaonal In nature, and to be used as and when
      needed and In the manner needed.       For example, the
      475 and +lOO item8 for olerloal      work were underetood
      to be for part time work, and It wee understood that
      they oould further be broken down aa needed.

            viie are or the opinion that the salaries      in ques-
      tion, whioh are payable out of Speolal I’ark Fund, and
      approved by the Leglelatlve       Audit Committee through
      the ‘budget aymtem’ are not governed by the quoted
      bortlon of Seotlon 1Lb of the Departmental APProPria-
      iion Bill.     To hold otherui8e wo-uld be holding eon-
      trary to la~lrlatlve     Intant,for    it le obvloue tm
      the Intention    of the leglsfature     was that such a
      linltatlon    on aalarlea applied only to epeoiflo
      salary approprletions,     and not to poselble     variable
      wage payments out of epaolal funds, nor to specific
      salary accounts set up by Cornmitteae, Doardsor
      Commisei~ona out of Special Funds.

           “Therefore,   we raapectfullg request an opinion
       from you, dlreotlng   the State Comptroller to lee.ue
       warrants on aald payrol1.v
      The copy of letter  to you from the Comptroller   accofipanying
your request and rererred  to therein reads ae follows:
            Tour payroll  drawn against Appropriation Lo.
       d-500 in the anount of .937.50 has been presented
       to me for gayBent.
             “General Zider, l!+b of tile De art.ilt;ntal -4p?ro$ri-
       atiori 9111 provides in part:     ‘i-0 g hin& Lere in ah611
       prevent any departnert    heed frol;l paying less thai ttit:
       zaxiinua anount set forth herein for any ealaried
       position.   * Section l&a provide8 in part:        *The head
       of any department of State Government or any Joard
       or Commission of 5tate Government may use part time
       employees to fill    any poslticn    provided for in tilia
ion.   Zrorih 3.          .&an,      PaCe 3

        sot at a aalary not to sroeed more than one-half
        the amount eppropriated for such position.@

              *Please advise as to why the rate of pay of
        the pert time employees llated    in thla payroll,
        whose rate Of oompenaatlon exoeeda more than one-
        half Of the amuht ret 88ide for that position,     la
        not in rlolation   of Seotlon ll+S, quoted above,
        After       reoelrlng     said request, we asked you for additional
lnforaatlon         relative     to tb faota and, in reply to our recueat,
you submitted             to us the hollowing:

                    "PAYROLLSAURY APPROPRIATIONS   FOR
                              STAlki PARK3 BOUD
                             SP;;cL\L PA!! FU'KD64
                                 &PA3I%KKT 801
                     FISCAL Yr;AR HDINQ AUWJST31, 1946
        niGFd&iKhS:               3. B. 317 - R.S. 49th Leglr.  and Legla-
                                  latlve Audit Commlttae
                0                 6 months Budget Approved Auguat 27,194s
        "APPR. ITLK                                                       La.
          NO. &                               TITIL                AZUUNT liAT&
       i:-500        (PnYiWLL %LMI&              .~GUL& BASIS)
                              ConaultFng Arohiteot                 600.00      100.00
                     i        Beoeptlonlat    - Part The           450.00
                              Heoeptlonlst    - Part Tlae          450.00       ;:*oo:
                     :        Stenographer                                     125:OO
                              File Clerk                           E::         100.00
                     6'       3raftamn                             600:oo      100.00
                              Typist and File Clerk                 600.00     lOO.GO
                     ii       ',ieet Texas tiepreaentative       1,200.00      200.00
                     9        Painter                              750.00      125.C~O

                              ICTd    ;;.i&&L;                   6,ooc;.oo   l,oOO.oO"


       l'he above payroll              salary appropriation       was a>prJved   by
tile Legislative  auditing              Cormdttee.
Hon. Frank D.     &inn,       page 4



        A copy or tile payroll in $ueation, Iteas 3 and 7 of
which are in dispute,  said payroll being as followe:

                            "TiXAS STAT& PAiXS 3OARD
                                 PAYROLL&TAIL
 Vupplementrry      Monthly Payroll          r;ndlng October             31at,   1945

 “Appr .   Item                                          Gross                    Net      War.
   No.      No.     Name and Payroll          Title       Amt.            Tax    Amt.       NOB.
 w-500      1        B. b. Glessoke
                     Coneulting Architect                100.00           --     100.00

            2        Mary Luollle    O'Brien
                     Beoeptlonlat-Plrt'.T~.                  75.00        0.70     74.30

            3        w. 0. Stewart (2/3 mo.)  50.00                       0.80     49.20
                     Fey Deglandon (l/3 no.)  25.00                       4.50     20.50
                     Rsoaptioniat - Part Time

            4        aetty     Corn
                     Stenographer                        125.00          16.50 108.50

            5        Elizabeth  Allen
                     File Clerk                          100 .’00         3.20     96.80

            6        ;Lary Burr
                     3raftsaan                           100 00 19.90              80.10

            7        L.w.lxmLer    (l/4 no,)                       :o"    5.70
                                                                           --      69.30
                                                                                   25.00
                     3arbara Haisch (3/4 no.)                7':
                     Typist and File Clerk
            8        Sred :.:ci;lel
                     :iest Texas Lepresenta-             c.rnh
                     t1ve                                ~uu.00           7.20   192.Z

            9        John bay         (l/2 no.)
                     PaLiter                         0;.50

                                                         937.50          66.80   870.70

                     Collector         of Internal     Revenue           66.801*
3011.    3rank 3.      &i~,          pabe    5




                The List of Comptroller’r l;umberr containing          the number
of this         particular item, whioh read8 aa followe:

                              “i&T
                              OF COIZl=TROLLR’~tilJXL,R~
                                  ASSIGNLDTO
                  APPROPRIATION8FOR FISCAL YL~ iND~G AUGUST31, 1946


    “Dr;PAR’I%.WT:STA’E PARK BOARD                     No. 801
     FUND       : SPLCIAL i’AREl
                              L 1’UDD                  No.  64
     APPHOPdIAlLD: 3.B. 317 - R.S. 49th Leg. & LGISWTIVB AUDIT
                  comm
                  6 ZNNTiIBUDGLTAPPROVZDAUGUST27, 1945
        APPXO. I?,O.                        TITLL CjFACCOUNT    A:P:30PDIA.LD AiCOUIJT
        W, 500                PAYROLLSALARIXSR&GULAaBASIS              4 6,000.oo
        (I* *    *‘I


        The appropriation                   for the Texas State iarks Board (VernonIs
Texae Session Law Servioe,                   pages 898-904) contains the following:
             “Al.1 of the previous annual balanoe in the Speoial
        Park Fund and all Future reoeipta      deposited  in the Speoial
        Park Fund are hereby appropriated      and re-appropriated    for
        each year of the biennium for maintenance and improvement
        of the State Parke.     Provided,   however, the State Parks
        Board shall not have the authority      to employ any additional
        help out of said reoeipte     except seaeonal help.      All main-
        tenance items may be eupplemented with Federal Funds.
             "All the above appropriation   shall be subjaot to the
        approval of the Jtate &Ziting     Co:hmittee and none of the
        funds hereir;. provided shall be epent until such approval
        shall have been aad.”

          AS we understand Lie situation,       the salaries     Ilere under
consideration   xere nst provided to fill       an;r position    referred    to
in t.le Appropriatioh   Uill itself.    ‘,‘ilsy are part ti:!e positiocs
created by t:le state Isxs     joard for seasone        help, i.:c; bud;;et
for which was set up by the L~~lslative         Audithi     CcmAttee,     er.d
em;loyeee in question are such employees as are authorized               under
the above quoted provisions      from the appropriation       for the State
Parka doard.    It 18 our opinion that the state Parks Doard would
Ha-i. Frank D. &no,     paLe 6



not be authorized to employ any additional       help other then
suoh aa would be eeaeonal help.     Accordingly,     it ie our
opinion that euoh payroll ir not in violation        of Seotion 148
eet out in the Comptrollerte  letter,    end that ft rhould be
paid se submitted by the State Parke Board.
                                          Your8   very   truly,




                                     BY        GA&B--=
JiB : lJ                                   8      Jas.   H, Bassett
                                                          Asalstant
