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                                 The Attorney                 General of Texas
                                                     December 21.     1981
MARK WHITE
Attorney General


                               Honorable Wilhelmina Delco                           Opinion     No. m-414
Supreme    Court Building
                               Chairman
P. 0. BOX 12546
Austin. TX. 76711              Committee on Higher Education                        RS:     Construction     of General
5121475-2501                   House of Representatives                             Appropriations       Act    provision
Telex 9101874-1367             Austin,  Texas   78769                               on     compensatory       time      for
Telecopier   51214750266
                                                                                    employees    required    to work on
                                                                                    holidays
1607 Main St.. Suite 1400
Dallas, TX. 75201              Dear Representative      Delco:
2w7428944

                                      You have requested    our opinion     regarding           the construction    of a
4624 Alberta Ave., Suite 160
                               provision    of the General     Appropriations     Act          regarding   compensatory
El Paso, TX. 79905             time for certain     employees.    Acts 1981, 67th             Leg.,   ch. 875. art.    V,
9151533.3464                   56c, at 3798.     Section  6c of article     V of the          current act provides     in
                               pertinent   part:
1220 Dallas Ave.. Suite 202
                                                 Each      state       agency      and    institution         and
Houston. TX. 77002
7t3%GO666                                  agencies     of higher         education      will,     during     the
                                           biennium,    have on hand enough personnel                  to carry
                                           on the activities         of each institution         or agency so
806 Broadway, Suite 312
                                           that the public        business     can be carried        on during
Lubbock. TX. 79401
8061747-5236
                                           that   period.        Those      employees     who are working
                                           during     that      holiday      period      will     be     allowed
                                           compensatory        time     off   at    a later        time.      The
4309 N. Tenth. Suite S                     supervisor     in charge may require             the employee to
McAlle”. TX. 76501
                                           give    reasonable        notice      in    advance      of    taking
51216824547
                                           compensatory      time off but may not require               that the
                                           employee      specify        the    reason      for      which     the
 200 Main Plaza. Suite 400                 compensatory      time is to be taken....
 San Antonio, TX. 76205
 51212254191
                                                 Agencies   who have work schedules        other than
                                           provided   in Article  5165a.   Section    2, will insure
 A” Equal OppOrtunitYI                     that employees working these schedules         observe the
 Affirmative Action Employer               equivalent     number  of   holidays      each    year  as
                                           employees working normal office       hours.

                                     You ask:

                                           Was it    the  legislative      intent    to  extend   the
                                           privilege  of Input in deciding      which days could be
                                           taken as compensation      for holidays   to both regular




                                                                       p.    1413
Honorable    Wilhelmlna    Delco     - Page 2       (MW-414)
                                                                                               .




             hour   employees        and     rotating     or   shift     time
             employees?

       You state that agencies          with employees on rotating        shifts    have in
the past allowed         those employees       to decide when to take compensatory
time.     In our opinion,       the language of the appropriations           act does not
authorize     the employee       to insist     that compensatory      time be used only
on a particular        date or at a particular          hour.   The agency is required
by the rider        to have on hand enough personnel                to carry     on public
business.      This requirement        is one factor      that may prevent      the use of
compensatory      time on a particular            date.     We believe    that both the
employee      and his        supervisor      should     have   in    mind   a range       of
alternatives,       so that the employee          is enabled     to use his time when
most convenient        for him to do so, and, on the other hand, so that the
work of the agency            is not unduly        disturbed    by his     absence.      The
employee’s     “privilege      of input” does not give him the exclusive              right
to determine when compensatory             time will be taken.

       In    our    opinion,      the     General   Appropriations     Act makes     no
distinction      between regular       employees   and those on rotating    schedules
or shifts.       The only purpose of the second paragraph quoted here is to
insure that rotating         employees     receive  the same amount of holiday    time
as regular       employees.      The same flexibility        as is contemplated     for
regular     employees      should     also    be practiced    by rotating   or shift
employees     and their     supervisors.

                                       SUMMARY

                   The General Appropriations       Act contemplates      a
             shared     responsibility       between    employee      and
             supervisor    with regard    to the use of compensatory
             tine.     The act      makes no distinction      for    this
             purpose between regular        employees and rotating      or
             shift   employees.




                                                    MARK        WHITE
                                                    Attorney   General of    Texas

JOHN W. FAINTER, JR.
First Assistant Attorney         General

RICHARD E. GRAY III
Executive Assistant       Attorney    General

Prepared    by Rick Gllpin
Assistant    Attorney  General




                                        p.   1414
    Honorable   Wilhelmina     Delco    - Page 3
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    APPROVED:
    OPINION COMMITTEE

    Susan L. Garrison,       Chairman
    Jon Bible
    Rick Gilpin
    Jim Moellinger
