                                          The Attorney General of Texas
                                                             March 22, 1982
MARK WHITE
Attorney General

                                        Mr. Kenneth El.Ashworth                opinion No.MW-459
Supreme      Court Building             Coordinating Board
P. 0. em 12549
                                        Texas College 8 University System      Re:   Award   of  merit   Pay
Austin,    TX. 76711. 2546
512/475-2501
                                        P. 0. Box 12788, Capitol Station       increases   by   coordinating
Telex    9101674-1367                   Austin, Texas   78711                  board
Telecopier     5121475-0266
                                        Dear Mr. Ashworth:
1607 Main St., Suite 1400
Dallas.   TX. 75201.4709
                                             You ask whether the Coordinating Board of the Texas College and
2141742-6944                            University System may use appropriated funds to grant merit bonuses in
                                        lieu of merit base salary increases. That is, whether the board may
                                        recognize superior performance by the award of a one-time payment or
4624 Alberta       Ave., Suite    160   payments over a limited number of months rather than by a permanent
El Paso, TX.       79905.2793
9151533-3464
                                        increase in base salary.

                                             The board's appropriation is found in article III of the 1981-82
1220 Dallas Ave., Suite          202    General Appropriations Act. Acts 1981, 67th Leg., ch. 875, at 3725~.
Houston,     TX. 77002-6966
                                        Article III, section 22 of that act applies to "agencies of higher
713,650~0666
                                        education" not covered by section 1, article V of the act. Section 22
                                        provides in pertinent part:
606 Broadway.        Suite 312
Lubbock,     TX.    79401-3479                   Funds are provided in the appropriations made to
6061747-5236
                                                 those agencies covered by this section in
                                                 sufficient amounts to permit annual salary
4309 N. Tenth, Suite B                           increases as follows:
McAllen.     TX. 76501-1665
5121662.4547                                          (a) All regular employees, excluding ranked
                                                 faculty in the ranks of Professor, Associate
200 Main Plaza, Suite 400
                                                 Professor, Assistant Professor and Instructor in
San Antonio.  TX. 76205.2797                     the general academic universities; professional
512/225-4191                                     positions in the Texas A & M Services; and faculty
                                                 and professional positions in the health science
                                                 centers and other medical education programs,
An Equal Opportunity/
Affirmative    Action     Employer               shall receive a minimum annual salary increase of
                                                 14.3% in fiscal 1982 and 8.7% in fiscal 1983.
                                                 Such increase shall be in addition to the salary
                                                 rates as of January 31, 1981, and shall apply to
                                                 only those salaries paid from funds hereinabove
                                                 appropriated.




                                                                   p. 1596
Mr. Kenneth H. Ashworth - Page 2   (Mw-459)




               (b) Funds are provided in the appropriations
          to agencies covered in this section to permit
          salary increase in fiscal 1982 of 17.06% and 8.7%
          in fiscal 1983 for all employees excluded by the
          preceding section. Salary increases for these
          employees are to be awarded on the basis of merit
          and performance in accepted activities including
          teaching, research and service. Such increases,
          if any, are in addition to the salary rates as of
          January 31, 1981, and shall apply to only those
          salaries paid from funds hereinabove appropriated.

               It is expressly provided that institutional
          administrators may grant merit salary increases to
          employees whose job performance and productivity
          is consistently above that normally expected or
          required. (Emphasis added).

     Article V, section 1 of the General Appropriations Act does not
apply to the board. That section speaks specifically to the issue of
merit pay increases for covered agencies. The board is not, however,
exempt from the terms of article V. section 2 of the act. Subsection
a of that section provides that:

          All annual salaries appropriated by this Act...
          shall be paid in twelve (12)      equal monthly
          installments, except as otherwise provided in
          Article II of this Act.

Cf. General Appropriations Act, Acts 1981, 67th Leg., ch. 875, art.
III, §8c, at 3719 (nine month employees). The Texas Supreme Court has
noted that "a salary is a fixed compensation for regular work."
Wichita County v. Robinson, 276 S.W.2d 509, 513 (Tex. 1955); see also
Attorney General Opinion H-1223 (1978). Webster's Third International
Dictionary defines salary as "fixed compensation paid regularly... for
services...." Cf. General Appropriations Act, Acts 1981, 67th Leg.,
ch. 875, art. Vxd,    at 3791 (merit salary increases to be given on a
monthly basis).

     Article III, section 22 speaks of "annual salary increases;"
while article V, section 2a requires that salaries be paid in equal
monthly installments. We believe this statutory language, with the
judicial definition of salary, requires us to conclude that the board
may not grant one-time bonuses in lieu of merit increases to base
salary. The board must either maintain existing salary levels or
increase base pay in recognition of exceptional service.




                              p. 1597
.

    Mr. Kenneth H. Ashworth - Page 3   @fW-45g)




                                  SUMMARY

                   The provisions of the General Appropriations
              Bill for 1981-82 fiscal years preclude the payment
              of one-time merit pay bonuses.




    JOHN W. FAINTER, JR.
    First Assistant Attorney General

    RICHARD E. GRAY III
    Executive Assistant Attorney General

    Prepared by Carl Glaze
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    Susan L. Garrison, Chairman
    Jon Bible
    Rick Gilpin
    Patricia Hinojosa
    Shawn Jamail
    Jim Moellinger




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