    The Attorney              General of Texas
                      March 23, 1981



Honorable John J. Kavanagh, M.D.           Opinion No. !4?J-311
Commissioner
Texas Department of Mental Health          Re: Overtime      compensation     for
  and Mental Retardation                   employee of the Department          of
P. 0. Box 12666                            MWMR who holds a full-time and a
Austin, Texas 78711                        part-time job at the same facility

Dear Dr. Kavanagh:

       You have requested our opinion ss to whether article 5165a, V.T.C.S.,
and article V, section 2e of H.B. 558, the General Appropriations Act, Acts
1979, 66th Legislature, chapter 643, at 2896, require overtime compensation
~to be paid to an MH/MR employee who holds a full-time and a part-time
position with the same MWMR facility.        We will assume that state law
permits such dual employment.

     Article 5165a, section 1, V.T.C.S., provides that:

           All state employees who are employed in the offices
           of state departments or institutions or agencies, and
           who are paid on a full-time salary basis, shall work
           forty (40) hours a week. Provided, however, that the
           administrative heads of agencies whose functions are
           such that certain services must be maintained on a
           twentyfour    (24) hours per day basis are authorized to
           require that essential employees engaged in per-
           forming such services be on duty for a longer work-
           week in necessary or emergency situations.

     Article V, section 2e of House Bill 558 provides as follows:

           OVERTIME. When a regular, full-time employee is
           required to work hours in excess of the standard work
           week established for the positton m accordance wth
           applicable statutes, the employee shall be entitled to
           compensation    for such overtime either:      (1) by
           receiving   equivalent  time off during the same
           biennium. . .     or (2) at the discretion     of the
           employing. . . agency. . . by receiving pay at a rate
           equivalent to one and one-half times the regular rate
           of pay. . . . Administrators   shall except specific




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Honorable John J. Kavanagh - Page Two         (MN-311)




          executive, administrative  and professional positions. . . from
          these provisions. (Emphasis added). Acts 1979, 66th Lag., ch.
          843, art. V, S2e, at 2698.

Excepted from the overtime provisions are “professional medical personnel and
employees employed in a bona fide executive,        administrative or professional
capacity.”  We assume that the full-time position to which you refer is classified
within the Position Classification Plan and that the employees in question are not
exempt from the overtime provisions of H.B. 556.

     An employee who holds a full-time position at an MHIMR facility and works in
excess of 40 hours per week in that full-time position is clearly entitled to overtime
compensation. The question is whether hours worked by a full-time MH/MR employee
in a separate, part-time position at the same MWMR facility constitute “hours in
excess of the standard work week established for the position” by article 5165a,
V.T.C.S.

     There is a dearth of case law in this area. One of the submitted briefs cites
cases arising tmder the Fair Labor Standards Act, 29 U.S.C. sections 201-219, s
Hodgson v. Penn Packing Co., 335 P. Supp. 1015(E.D.Pa. 197B, and certain Texas cases
dealing with overtime compensation,e.+       City of Temple v. Brown, 383 S.W. 2d 639
(Tex. Civ. App. - Austin 1964, writ dmm d); City of Wichita Falls v. Cox, 300 S.W. 2d
317 (Tex. Civ. App. - Fort Worth 1957, writ rePd n.r.e.1; Campbell Cleaning and Dye
v                  163 S.W. 2d 253 (Tex. Civ. App. - El Paso 1944, writ rePdX However,
these cases are not helpful.      Aside from the fact that the minimum wage and
maximum hour provisions of the FLSA are not binding upon the states, National
League of Cities v. Usery, 426 U.S. 633 (1976), the overtime provisions of the FLSA
are quite different from those of the General Appropriations Act. The Texas cases
which are cited are inapposite. And our own research has disclosed no case which is
on point.

       Our objective in construing the overtime provisions of the General Appropria-
tions Act must be to ascertain and give effect to the legislature’s intent.       Jessen
Associates, Inc. v. Bullock, 531 S.W. 26 593 (Tex 1975). Intent must be ascertai-
examining the entire enactment      Citizens Bank v. First State Bank, 580 S.W. 2d 344
(Tex. 1979). When the overtime provisions are clceel~ scrutinized, it becomes
apparent that the legislature addressed nothing more than the issue. of overtime
compensation for regular, full-time state employees who work additional hours in the
fulltime position in which they are employed. There is nothing to indicate that it
even contemplated a situation involving an employee who puts in more hours than his
full-time position calb for, but in a separate, part-time position in which he chooses
to work We decline to hold that such an employee is entitled to overtime for the
hours worked in the part-time position absent any evidence that the legislature
intended this result or, for that matter, even considered the question. See State v.
Standard, 414 S.W. 2d 148 (Tex. 1967); Gilbert v. State, 437 S.W. 2d 44mex.          Civ.
App. -Houston B4th Distl 1969, writ rePd n.r.e.) (legislative grants of rights or
privileges are construed strictly in favor of state; anything not unequivocally granted
in clear and explicit terms is withheld).




                                        p. 991
 Honorable John J. Kavanagh - Pege Three         @h’-311)




       We therefore conclude that an MH/MR employee who hol& a full-time and a
 part-time position at the same MH/MR facility is not entitled to overtime for the
 hours worked in the part-time position.

                                   SUMMARY

               Article 5l65a, V.T.C.S., and article V, section 2e of the
           General Appropriations Act do not entitle an MH/MR employee
           who holds a full-time and a part-time position at the same
           MH/MR facility to overtime for the hours worked in the part-
           time position.

                                         vQ.vtrzg
                                                MARK      WHITE
                                                Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMlTTEE

Susan L. Garrison, Chairman
Jon Bible
Lucius Bunton
Rick Gilpin




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