       THEATTORNEYGENERAL
               OFTEXAS
                     AUSTIN. TEXAS


                       June 14, 1949

Hon. Robert S. Calvert
Comptrollerof Public Accounts
Austin, Texas
                         Opinion No. V-845
                         Re: The legality of paying the
                             15% supplementalsalary
                             under H:B. 197, 51st Leg-
                             islature,to University of
                             Texas employees who had
                             previouslyhad a salary
                             increase since Sept. 1,
                             1947.
Dear Sir:
            Your letter requestingan opinion states:
         "House BillNo. 197 as passed by the
     resent RegularSession of,the Fifty-First
    Eegislature~made~a.supplementalappropria-
    tion to increase the salaries of State offi-
    cials-and employees whose salaries are pro-
    vided for in-house Dill~No. 246, Acts of the
    Begular.Session.of,~theFiftieth Legislature
    for thenp~eriodbeginning with the effective
    date of the Act and ending August 31, 1949.
          "The following'questionshavearisen as
    to~the use of the moneys appropriatedby Rouse
    ~Bill~.No.197, supra:
         l'a. Is the Comptroller legally author-
    ised to issue a warrant in payment of a claim
    ~fora~current salary,where~theBoard of Re-
    gents of the University of Texas has since
    September 1 1947~and prior to the enactment
    of House Bill No. 197 increased such salary
    and where the fifteen percent (15%) increase
    authoriaed under House Bill No. 197 plus the
    amount increasedby the Board of Regents ex-
Hon. Robert S,,Calvert, Page 2   (v-845)


     ceeds $37.50. The $37..50is the maximum a-
     mount that any.~singl.e.salary.,may
                                      be increased
     by House ~~Bill
                   NO. 197.~forany one month.

          "b. Uay themBoard of Regents of the Uni-
     versity.of.Texas userthe.moneys appropriated
     by House Bill No,.197, supra, to increase a
     salary.thatis paid out.of local funds of the
     University.
          "C. May the Boardsof Regents of the Uni-
     versity of Texas use.the moneys appropriated
     by House Bill No. 197, supra, to create new
     positions.n
          H. B. 197 provides in part as follows:
          Vrovided, however that the supplement
     herein provided~forshail be based upon the
     salary,,schedulesin effect on September 1,
     1947, at the various higher educationalinsti-
     tutions covered by House Bill.No. 246, and
     that,if salarks have been increased since that
     data, regardlessof the source or sources from
     which such increase may have been provided,
     ,theincreaseshare~inallowed and appropriated
     for shall,be.limited.to the differencebetween
     ,theschedule herein provided and the increase
     ineffec,tsubsequent~ to September 1, 1947."
           Your first question involves,the problem of de-
 termining ,whetheror not the-above proviso places a lim-
citationon the amount individua~,salariesmay be increased
 by.the Board of Regents of The Unive~rsityof Texas where
 such increasa.,ispayable out of funds allowed and appro-
 ,priatedby H. B. 197. Although the,phraseology of this
 proviso is not clear,.we thinkthat when the proviso is
 given a literal inter~pretationas.well as when it is con-
..sider.ed
         in connectionwith other provisions in H. B, 197,
 there is revealed anyintention of the legislaturenot
 thereby to limit.indiv~idualsalary,increasesbut rather
 to limit the aggregateamount authorized to be used by
 the governing board of~~eachinstitutionto augment sal-
 aries of~all officialsand employees eligible for an in-
 ~cre,ase
        under H. B. 197.
          Thus co,nstrued,
                         the above proviso has only the
Hon. ~RobertS. Calvert, Page   3   (V-845)



 following effect: (1) it requires that the schedule of
 salaries in effect on September 1, 1947, at the insti-
 tution be used in determiningthe supplementto be made
 available for the use of the institution (this supple-
 ment~is anyamount equal to 15% oftall salaries and por-
 tions of all salariesup to and-including#3 000); (2)
 it places a limit on the.amounttofthis supplementau-
 thorized to be used by an institutionwhere salaries
 have been increased~sinceSeptember 1, 1947. The amount
 ~thusavailable to such institution.foraugmenting sal-
 aries is to be determined,bytaking the difference be-
 tween the schedule provided in H. B. 197 (the supplement
 as~above defined) and the ~aggregateincrease in salaries
-made since September 1, 1947, regardless of the source
 orsource,s from which such increase may have been pro-
 vided. Under this~proviso the ,totalamount authorized
 to be used by an institutionfor augmentingsalaries is
 decreased where salaries~have been increased subsequent
 to September 1, 1947, and prior to the enactment of
 H. B. 197, but no limitation is placed on the amount
 any individual salary may be.augmentedby the governing
 board.
          The paragraph followingthe above proviso
states:
          nit is the specific purpose of this Act
     to appropriateforthe use of the several
     State higher educationalinstitutionscov-,
     ered by said House Bill No. 246, for use in
     supplementingsalaries and/or wages, the
     respective amounts equal to fifteen per cent
     (15%) of,all salaries and portions of all
     salaries~up.toand including Three Thousand
     U liars ($3 000) of the amounts appropriated
     f& salarie: in said House Bill No. 246.
     a 0 .IV (Emphasisadded throughout.)
Here again the term "1578 is used in the sense of an ag-
gregate amount and not as a limit on an individualsal-
ary.
          Another section of H. B. 197 provides that
*the amounts ~(are)to be made available to the institu-
tions in lump sum and,inthe same manner and subject to
the same general provisionscovering'salariesas con-
tained in House Bill No. 246." In Hi B. 246 the salary
 Hon. Robert S. Calvert,.Page4    (v-845)


 appropriationsfor,educationalinstitutionswere also made
 in lump~sums and not itemised...One~
                                    of the general pro-
 visions of H..,.B.
                  246 provides:
           e&e board of regents or directors with-
      intheir discretion Andywith good reason may
      make such,changesand substitutionswithin the
      ~totalsfor ~salariesas may be found necessary,
      .and.areautho~rized~to~transferitems or
      of ~items,providsd.thatthe total sum to t:fifid
      for salaries out of this appropriationshal not
      exceed.thetotal amount appropriatedfor sal-
      aries.n
  This provisiongiv,es,tothe Board of ,Regentsof The Uni-
  veraity of.Texas the authority~todetermine the salary
  .&each offic.ial~and  employee of the institutionwithin
  the limit of the t~otalamountappropriated. By providing
  that the amounts made.available.byH..B, 197 are to be
  n.subje.ct
           .to~thensame general pro.v.isions
                                           covering sal-
 ,.ariea,as.cont.ainedinkuse Bill.R0~;~246,~  it appears
  that the legislature intended that the~~Boardof Regents
  should likewise.haveeauthority  t.odeterminethe amount
  the salary of each official and~employeeis to be aug-
 ,mente.d,the totalssu plement av.ailable to TheT~;i~a;;ity
.,~ofTexas,by H..B.~.lgf being t~heonly,limit.
  that the ~amountismade availab1.e  ina lump sum and not
   itsmised lends supportsto this construction.
           The.follawingprovision in H. B. 197 also sup
 ports this construction:
           "The governing board of the higher educa-
      tional institutionsshall bave full authority
      to use~supplementsherein appropriatedto pro-
      vide as nearly as possible, and yet as equit-
      ably as possible salary supplementsup to but
      not to exceed, fifteen per cent (15%) of afl
      salaries and portions of all salaries up to
      and including Three Thousand Dollars ($3,000)
      for all positionsCo.veredin the first two
      paragraphsof this Section.n
  This provisiondoes not place any limit on the amount
  each individual~s~salary~may be augmented..1rfstead.i.t
  gives full authority to the governing~board of tne in-
  stitutionto~provide equitablesalar supplementswhich
  shall total in the aggregate as nearIy as possible but
 notexceed, l#of "all -   salaries and portions of &
:




    Hon. Robert S. Calvert, Page 5   (V-845)


    ~salaries*up to and including $3,000 for all positions
    -covered by the Act.
               There being,no limitation in H. B. 197~on the
     amount each ~individual'ssalarymay be augmented, but
     only ,alimitation on the aggregatesamount available to
     each institutionfor use in supplementingsalaries, it
     is our op~inionthat.the Comptroller is legally author-
     ised to issue a warrant in.paymentof a claim for a cur-
    "rentsalary where the.Board of Regents of The University
     of Texas has increased such salary s.inceSeptember1,
     1947, and prior to~the enactment of H. B. 197, even
     though the.inc~rease.
                         given.under H. B. 197 plus the prior
     inc.rease.
              exceeds $37.50 per month.
              The Board of Regents may use the moneys appro-
    priated by H. By.197 to increase a~salary that is paid
    out of localfunds oftthe University. H. B. 197 pro-
    vides:
              "No ~increasesshall begparticipatedin by
         ,anyof .theState.~,officials
                                    or employees on pay-
         rolls from funds other than State appropria-
         ,tions,wholly or in part, except that said in-
         creases may be paid,~.ratably~
                                     from State appro-
         priated funds and the~balanceof said increases
         herein provided, if paid..,shall
                                        come from such
         funds other than State appropriations. . . .)(
    This exception applies only to State officialsand em-
    ployees whos,esalaries are payable in whole or inrlrt
    nfrom funds other than State .appropriations."
    fundsof The,Universityof Texas are "State appropria-
    tions" and thus do no-tcome within the above exception
    having been~appropriatedby..Suhse.ction(3) of H. B. 244,
    which provides in part:
               "* a 0 all proceeds . . . from the sale of
         materials, crops and~supplies,from fees, and
         any and all other rece~ipts~shall become and are
         ,herebyappropriat~ed as maintenance or contingxt
         -to                   under the direction and
         with the approval of the governing board having
         ~jurisdiction. .~. . Any balance remaining to
         the credit of any of said +stitutional local
         funds at said institution#or i,nthe State YE;:-
         ury, at the end of any fi cal year is hereb
          PO riated for the,above mentioned purposes or
         *ding           year."
Hone.Robert S. Calvert, Page 6   (V-845)


          There.is no authority for the Board of Regents
of ~The,Univereityof T,exas~tous~ethe moneys ap ropriated
byeH. B. 197 .o.create new poaitians. H. B. 19f states:
          "It is the genaral purpose of this ap-
     propriation-toincrease~~the~current salaries
     of State off.iciala.andState employeeshold-
     ing positionsaa~of~the affe.ctive date of
     thia,~Act and who may hold such positions be-
     tweenne.akeffe.ctivedate and August 31, 1949.
     . . .
          Itis evident~fromthis~provisionthat H. B.
197~was~far,the~-purposeroof
                           providing~an increase in sal-
aryfor,~only..those~
                   State~.officialsand employees satis-
fying the .followingconditionsof,~employmen~:~(1) they
must ~b.e
        ~holdingsuch position as of the effective date
of.the act, u,(2.).they must hold such position between
said sffective~datesand August 31, 1949. A person hold-
ing a.position created.afterthe effective date of the
act could not.satisfy thenfirst condition and thus would
not .be~
       eligible-forany incr~ease provided by this act.



          The Comptrolleria authorizedto issue a
     warrant in payment of a claim for the current
     salary of an employee covered in H. B. 197
     where the salary of such employee has been in-
     creased since September 1, 1947, and prior to
     H. B. 197, even though the increase given un-
     der H. B. 197 plus the prior increase exceeds
     $37..50 er month. The Board of Regents of The
     Universfty of Texas may~use the moneys appro-
      riated by H. B.,197 to increase a salary that
     E'
      s paid.out of local funds of the University,
     but,may not.use thesesmoneys~to create new
     positions.
                             Yours very truly,




ATTORNEY GENERAL


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