             EATE-OECNETT          ,GENE
                     OF         XAS




                             October 6, 1961

Honorable William J. Burke   Opinion No. WW-1159
Executive Director
State Board of Control       Re:   Construction of House
Austin, Texas                      Bill 189, 57th Legisla-
                                   ture, and the classifica-
                                   tion plan in reference
                                   to certain employees of
                                   the San Jaclnto State
                                   Park who were heretofore
Dear Mr. Burke:                    paid on a dally basis.
       You have requested this office for an
opinion on the questions of:
       II
        . . . (1) Should-employees who have been
       on the payroll as regular employees of the
       San Jacinto Park Commission and paid on a
       faily rate from the appropriation item titled
        Wages and Extra Help' (H.B. 4 who now under
       the provisions of House Bill 1c4
                                      9 and the
       classification plan are classified as
       'Laborers"with job specification 9003 be
       brought under the provisions of the classi-
       fication plan and the salary schedule as
       regular employees on the payroll as of
       August 31, 1961 and thereby entitled to com-
       putation of annual salary bates In keeping
       with the provisions of House Bill 189, Sec-
       tion 2, paragraph 3?
            "(2) If your answer to question one
       (1) above is in the affirmative, should an
       employee furloughed for two weeks due to a
       lack of funds in the 'Wages' account (H.B.
       4), a situation beyond the control of the
       San Jacinto Park Commission and the employee,
       be returned to and continued on the park
       payroll as of September 1, 1961 as a regular
       employee and his salary under the classifica-
       tion plan established in keeping with the
       language and intent of paragraph three (31,
       Section two (2) of H.B. 189, 57th Legisla-
       ture, Regular Session?"
Honorable Wlliam   J. Burke, page   2 @W-1159)

          The nature of the questions posed necessitates
the setting out the factual background. Four of the
employees of the San Jacinto State Park, under the pro-
visions of Senate Bill 1, Actsof :he 57th Legislature,
1st Called Session, and House Bill 189, Acts of the 57th
Legislature, Regular Session, Chapter 123, page 238, the
Position Classification Act of 1961, have been classified
as "Laborers" with job specification of 9003. These
four employees, while compensated previously on a daily
rate basis rather than an annual salary basis, have been
regularly employed by the San Jacinto Park for periods of
time ranging from two (2) to seven (7) years. The annual
earnings for these four employees for the year ending
August 31, 1961, even though paid on a daily rate basis,
and their contributi.onsto the Employees Retirement Fund
are set forth as follows::
         "Employee                        Retirement
          A



          For the biennum commencing with the 1st day of
September, 1951, and ending on the 31st day of August,
1961, these four employees have been compensated from
funds appropriated to the San Jacinto State Park
pursuant to ,theprovisions of House Bill 4, Acts of the
56th Legislature, 3rd Called Session, Chapter 23, page
562, the General Appropriation Bill, under the alloca-
tion of "Wages and Extra Help."
          The Comptroller of Public Accounts has raised
the question of whether or not these four employees
fall within the provisions of Section 2 of House Bill
189 which provide that:
          II
           . . . Specifically exempted from the
          Position Classification Plan herein-
          after described are . . . hourly
          employees, part-t$me and temporary
          employees. . . . ,
and thereby are now considered as new employees and
thus subject to the provisions of Section 13 of
Article III of SenatesBill 1 which provide that:
          "B. Hiring Policies. (1) New employees
          will be started at the minimum salary of
.




    Honorable William J, Burke, page 3 (WW-1159)

              the range to which the position is
              assigned;'a e Q
              While the four employees involved in the
    instant case have heretofore been employed by the San
    Jacinto State Park on a daily rate basis3 House Bill
    4 contained no provision making this method of compen-
    sation necessary. Such employees could have been
    employed by the San Jacinto State Park on an annual
    salary basis rather than a daily rate basis, and the
    only limitation placed upon the San Jacinto State Park
    was the availability of appropriated funds in the "wages
    and Extra Help" fund from which these four employees
    were paid.

              As these four employees are not hourly
    employees, and in turn could not be considered part-
    time or temporary employees in view of their past employ-
    ment with the San Jacinto State Park, but in actuality
    were regular, full-time employees of the San Jacinto
    State Park,~such employees would not fall within the
    exemption from the Position Classification Plan found
    in Section 2 ~of House Bill $39.
              Such being the case and in view of the pro-
    visions of Dararrraohthree (3) of Section 2 of House
    Bill 189 which &?ovide that;-'
             "It is further provided, however, that
                emn se          presently emDloved &
             t& St%e ih%? 2 Paid less throumh
                 aPDlication of this Act than the
             salary hg received & accordance with
             the provisions --
                            of House Bfll No. mActs
             rthe   Fifty-sixth Legislature, Third
             Called Session, 1959, or the minimum
             of the appropriate salary range
             specified in the General Appropriations
             Act effective September 1, 1961, which-
             ever is the higher, so long as said
             employee remains in such classified
             position under the Positiot Classifica-
             tion Plan."~ (Emphasis added)
              We are of the-_.
                            opinSonL"._
                                    that _the four employees
    in the instant case WOUCL oeentitleci to compensation,
    in their classification as "Laborers" with iob speoifi-
    cation of 9003, in an annual amount of not less t13n
    the total compensation they had received on a daily
    rate basis during,the period commencing Sep,tember1,
    1960 and ending August 319 1961.
                                                            .




Honorable William J. Burke, page 4   (WW-1159)



          Your first question being answered in the
affirmative, this then raises the question of whether
or not one of these employees who had been furloughed
for a period of two weeks at the end of the biennum due
to a,,lackof available funds in the "Wages and Extra
Help account, will be compensated pursuant to the pro-
visions of Section 2 of House Bill 189 or whether the
following provisions of Section B of Article III of
Senate Bill 1 are applicable:
              "(3)  Reinstated Employees. An
         employee who leaves state employment
         due to illness or some other circum-
         stance and returns to his same position
         in state employment at a later date,
         may be reinstated to his former position
         at the salary rate he had when he left
         state employment, provided it shall not
         exceed the maximum rate of the pre-
         scribed salary group. If tiiisformer
         rate exceeds the maximum of the range
         in the prescribed salary group then the
         position shall be paid at not more than
         the maximum."
          We are of the opinion that an employee who
had been temporarily furloughed under these circum-
stances set forth herein has not left State employment
wi?Wi.nthe sense contemplated by Section B(3) of
Article III of Senate Bill 1, and therefore could be
returned to the payroll of the San Jacinto State Park
on September 1, 1961, and compensated pursuant to the
provisions of paragraph three (3) of Section 2 of House
Bill 189, and in an amount of not less than the rate of
compensation he had received during the period commencing
September 1, 1960 and ending August 31, 1961.

                     SUMMARY
          The four employees of the San Jacinto
          State Park in the instant case are
          entitled to compensation in an
          amount of not less than the rate of
          compensation they had received on a
          daily rate basis, during the period
          commencing September 1, 1960 and ending
          August 31, 1961.
          The employee in the instant case
          who had been temporarily furloughed
HonorableWilliam J. Burke, page 5 (WW-1159)

            has not left State employment within
            the sense contemplated by Section
            B(3) of Article III of Senate Bill
            1 and could be returned to the pay-
            roll of the San Jacinto State Park
            on September 1, 1961, and compen-
            sated pursuant to the provisions
            of paragraph three (3) of Section
            2 of House Bill 189.
                          Yours very truly,
                          WILL WILSON
                          Attorney General of Texas


PB:lgh                    By:
                                Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Bob Eric Shannon
Jack Goodman
Colman Gay III
Harry Hewell
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
