The Honorable Bob Bullock             Opinion No. ~I-768
Comptroller of Public Accounts
Lyndon B. Johnson Building            Re: Method by which
Austin, Texas 78774                   salaries of state employ-
                                      ees are to be calculated
                                      when employees receive
                                      pay for only part of a
                                      month.
Dear Mr. Bullock:
     you have requested our opinion concerning article V,
section 2(a) of the current appropriations act, Acts 1975,
64th Leg., ch. 743, p. 2417, which provides in part at page
2845:
         All annual salaries appropriated by this
         Act shall be paid in twelve (12) equal
         monthly installments, except as other-
         wise provided in Article II of this Act.
                The equivalent hourly rate of pay
         for annual employees maintaining a 40
         hour work week and covered under Article
         5165a, Vernon's Civil Statutes, as amended,
         shall be determined by dividing the annual
         salary by 2,080. This basis applies to
         partial pay overtime and other special
         situations. When a full-time or regular
         part-time employee is on leave without
         pay I compensation for that particular
         pay period shall be reduced at the equi-
         valent hourly,rate of pay times the num-
         ber of work hours lost by leave without
         pay.




                            p. 3241
     .




The Honorable Bob Bullock - page 2 (H-768)


     You have presented the following examples of the operation
of this provision:
         EXAMPLES OF SALARY COMPUTATIONS PURSUANT TO
         ART. V 8 2
         All examples are based on an employee.receiving
         a salary of $lZ,OOO.OO annually, $l,OOO.OO monthly
         or $5.71 hourly.
          Calculation for Partial Month's Pay:
          1) An employee who works 22 days during a
          month which has 23 working days will have
          his pay computed as follows:
             22 days x 8 hrs. x $5.77 per hr. = $1,015.52
             or $15.52 more than the $l,OOO.OO he would
             have received for working a full month.

          2)  An employee could work 21 Z/3 days during
          a month containing 22 or 23 working days and
          be paid $l,OOO.OO which is as much as an em-
          ployee who worked the full month.
             21.67 days x 8 hrs. x $5.77 per hr. =
             $1,000.00
          Calculation of Partial Month Due to Employee
          being on LWOP (Leave Without Pay]:
          1) During a month having 23 working days, an
          employee on LWOP for 22 days will have his pay
          computed as follows:
             $1,000.00 - 22 days x 8 hrs. x $5.77 = -815.52
          In this case, not only is he not paid for the day
          worked, but he owes the statem5.52.    If he had
          been paid positively for the day worked, he would
          have received $46.16.




                             p. 3242
The Honorable Bob Bullock - page 3 (H-768)



         2)  During a month having 21 working days, an
         employee on LWOP for 19 days will receive
         $122.96 using the negative method:
             $1,000.00 - 19 days x 8 hrs. x $5.77 = $122.96
         If he were to be paid on the partial month posi-
         tive approach, the calculation would be:
             2   days x 8 hrs. x    $5.77       =   $92.32

         3)  In certain cases such as maternity where an
         employee may be on LWOP for 23 working days of
         a 23 working day month, the calculation would
         be as follows:
             $1,000.00 - 23 working days x 8 hrs. x                   $5.77
            = -$61.68

         Instead of simply not being paid for the month
         on LWOP, the employee owes the State $61.68.
         4) According to the procedure as outlined in
         Art. V, an employee on LWOP for 20 days during
         a pay period of,20 working days could theoret-
         ically be paid $76.80 even though no work
         was actually performed:
             $1,000.00 -    20   days x 8 hrs. x             $5.71   per
             hr. = $76.80
          Positive Partial Month's Pay Calculation compared
          to Negative LWOP Calculation for same Pay Period:
          In a month with 21 working days, an employee work-
          ing 18 days and terminating would receive the fol-
          lowing compensation:
             18 days x 8 hrs. x         $5.71       per hr. = $830.88
          An employee who also works 18 days in a month
          with 21 working days and is on LWOP for 3 days
          would receive the following compensation:




                                   p.   3243
The   Honorable       Bob Bullock - page 4 (H-768)


                      $1,000.00 -   3    days x 8 hrs. x   $5.77   per hr.
                      = $861.52
              These examples clearly indicate that employees
              working the same number of days in the same pay
              period at the same pay scale can receive different
              compensation.
       In light of these problems, you ask:
              1) Is the language of Article V, 8 2 pertaining
              to the hourly rate calculation and the situations
              to which it applies so inequitable and contradic-
              tory so as to render it void?
              .   .    .

              3). . . [M]ay the Comptroller continue to use the cur-
              rent method of hourly rate calculation for par-
              tial pay, overtime, and leave without pay?
              4). . . [M]ay the Comptroller use an alternative               '
              method which involves the same mathematical
              concept, but is not a "yearly" hourly rate
              as is demonstrated in Attachment B?
     It is well established that where adherence to the
strict letter of a law would lead to injustice, absurdity,
or contradiction, the law should be given a reasonable
construction. Magnolia Petroleum Co; 5 Walker, 83 S.W.Zd
929 (Tex. Sup. T935]*~ 53 Tex.Jur.ZhStatutes 8 165. As your
examples indicate, a'strict adherence to section 2(a) can
result both in absurd, ridiculous, and unjust consequences
and in a violation of the minimum wage provisions of article
5159d, V.T.C.S. We do not believe the Legislature intended
section 2(a) to be so applied. To the contrary, we belleve
the Legislature intended the questionable and unworkable
provisions of section 2(a) to be directory rather than
mandatory. See Bishop v. Houston Independent School   DistI.,
29 S.W.Zd 312T  ‘
                ex . sup. 1930); 53 Tex.Jur. Statutes S 15.
The Comntroller in the-exercise of his duty m     FITper-
intend &e fiscal concerns of the State" should be guided
but not bound by the language of section Z(a). See V.T.C.S.
art. 4344, 8 3; Attorney General Opinion H-645 (m5].




                                    p.   3244
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     The Honorable Bob Bullock - page 5 (H-768)


     Thus, while section 2(a) is not void, the Comptroller need
     not strictly adhere to its provisions concerning special
     situations. If upon review of the operation of the proce-
     dures contained in section 2(a) the Comptroller determines
     them to be unworkable, in our opinion he may select other
     reasonable procedures for computation of pay in special
     situations. Accordingly, we answer your last two questions
     in the affirmative.
                             SUMMARY
                 Article V, section Z(a) of Senate Bill
                 52, Acts 1975, 64th Leg., ch. 743, p. 2417,
                 should be construed by the Comptroller
                 as directory. If the procedures estab-
                 lished therein are determined to be un-
                 workable, the Comptroller may select
                 another reasonable method fok the
                 calculation of pay in special situations.
                                           -Very   truly yours,




     APPROVED:
                                        u      Attorney General of Texas




     Opinion Committee
     jwb




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