            EZE ATTORNEY           GENERAL
                      OFTEXAS




                          August 7, 1963


Honorable Raymond W. Vowel1       Opinion No. C- 123
Executive Director
Board for Texas State Hospitals   Re:   A plicatfon of H.B. 86,
  and Special Schools                   58th Legislature, to
Austin, Texas                           present and subsequently
                                        hired employees in the
Dear Mr. Vowell:                        Special 'S" salary rates.
          You have requested our Interpretation of the recent
Appropriation Bill, H.B. 86, 58th Legislature, regarding the
following questions:
          "1. May an employee hired prior to September
     1, 1968, whose salary on September 1 is adjusted
     to one of the "S" rates be treated the same as an
     employee hired on or after September 1, 1963, by
     having his salary subsequently brought to Step 1
     of the designated salary range as the employee's
     experience and performance may warrant.
          "2. May such adjustments be made without
     reference to the minimum time schedule and the
     monetary allowance for merit salary increases
     as provided in Article V, Sectionl, L, provided
     appropriated funds are sufficient to cover such
     adjustment."
          By way of explanation, you have called our attention
to the fact that Section 1 B(a) of H.B. 86 provides only for "new
employees" hired after September l:,1963, as regards adjustment
of salary from one of the Special S" rates up to and including
Step 1, and as there is no similar provision for those presently
employed a serious discrimination against present employees could
result.
          You further explain the similar lack of any specific
provision as totiether any such adjustments fn salary from one
of the Special "S" rates to Step 1 are subject to the provisions
governing Merit Salary Increases.

                              -610-
Hon. Raymond W. Vowell, page 2 (C- 123 )


          The General Appropriation Bill of the 58th Legislature,
reflects the untiring efforts of many persons interested in Improving
classification and salary conditions of State employees by adjusting
salarles to meet,present-day demands and by creating the desirable
uniformity of “equal pay for equal work.” In most instances the
Bill specifically and clearly defines the status of State employees,
but it nonetheless still gives the various departments of State
government a certain rangwof latitude and discretion In regard to
the salary of their personnel.
          The Special "S" rates, themselves, are a good example
of this granting of discretion. Section 1B of H.B. 86 provides:
         "B. HIRING POLICIES. 1. New employees
    will normally be hired on Step 1 of the salary
    range for the assigned group to which the position
    is allocated, with the following exceptions:
         “(a) Department heads may make appointments
    at one of the special “S” rates below Step 1 either
    for periods of training or to meet prevailing salaries
    of localities in Texas encountered by the agency.
    Such employees may subsequently be brought to Step 1
    of the designated salary range as the employee’s exper-
    ience and performance may warrant. Any Increases in
    salary above Step 1, in the aame classlflcatlon, how-
    ever, shall be made only in accordance with provisions
    for merit salary increases hereinafter provided.'
          Thus, the Legislature has provided for "new employees
hired in the Special "SI'rates" to be brought to Step 1; but, as
regards present employ&s, there is only Section 1 A 2 which reads
as follows:
         “2. An employee who, In August, 1963:    (a)
    is not covered by the Position Classification Plan,
      . .and who will occupy a claasifled position on
    September 1, 1963, under the terms of this Act,
    shall have his salary g+n$srQetl bea ,%&%),&n the ‘,
    de&lg~ated salary group which represents the step
    rate nearest above the rate paid in August, 1963.”
          We then come to the problem OS determining If presznz
employees who on September 1st are converted to the Special S
rates may also have their salary adjusted up to Step 1 the same
as new employees,




                              -611-
Hon. Raymond W. Vowell, Page 3 (CA123   )


          The courts of this State have consistently held that
statutes should be construed so as to effectively carry out the
legislative intent even though the literal meaning of the words
used therein is not followed or It is necessa   to supply'omlsslons.
Patterson v. City of Dallas, 355 S.W.2d 830, 8
                                             3 4 (Tex.Civ.App.,
lgb2          f         ) and cases there cited; and Wood v. State,
133 +eYYfOTelh~   i:i:% 4, 7 (1939).
          If we were to hold that In view of the lack of specific
authorization for treating both new and old employees alike only
new employees in the Special "S" rates could have their salaries
adjusted, the most undesirable result of Injustice and discrimina-
tion would occur, for one of the main purposes of job classification
and the accompanying salary schedule was to eliminate such evils.
Further, the Legislature has never evidenced an intent to discrimi-
nate against "old employees" and it certainly is not within the
spirit of this Bill to discriminate against "old employees" to the
advantage of "new ones" hired on or after September 1, 1963.
          Therefore, notwithstanding the lack of specific reference
to "old employees in Section 1 B a" we hold that the provisions
relating to adjustments in salary from one of the Special "S" rates
to Step 1 apply equally to "both 'newt and told' employees." In
reaching this result we are attempting to give full credit to the
overall legislative intent which, once ascertained, cannot be thwarted
by an interpretation which would lead to the very injustice sought
to be alleviated.
          As regards your second question, Section 1 B (a) provides
for adjustment "as the employee's experience and performance may
warranty up to and Including Step 1, but "Any increases In salary
above Step 1, in the same classification, However, shall be made
only in accordance with provisions for Merit Salary Increases
hereinafter provided." We would also point out that there is no
mention of the Special "S" rate in the specific table of Merit
Salary Increases found in Section 1 L(1) in providing for both the
minimum length of State service and time in Step requirements from
Step 1 through Step 7.
          Therefore, we feel that the various State departments
were left with the discretion of determining when an employee's
experience and performance warrant adjustment In salary, and that
the Legislature so chose to place this latitude of discretion be-
cause of the difficulty 3n determining the necessary period of
training or of foreseeing local prevailing salaries in Texas.
          We specifically hold that such Is equally applicable to
both old and new employees and that such adjustments may be made


                             -612-
Hon. Raymond W. Vowell, page 4 (C-,123 )


provided that funds are available. Such adjustments are not
merit salary increases, and therefore do not count in computing
     .4$ limitation placed on Merit Salary Increases in Section

                          SUMMARY
          Employees hired prior to September 1, 1963,
     whose salary on September 1 Is adjusted to one
     of the "S" rates and those employees hired on or
     after September 1, 1963, may subsequently be brought
     to Step 1 of the designated salary range as the em-
     ployee's experience and performance may warrant.
     Such adjustments are not Merit Salary Increases, and
     therefore may be made without reference to the pro-
     visions of Section 1 L regarding minimum length of
     State service and minimum time In Step after September
     1, 1963.
                                    Very truly yours,
                                    WAGGONER CARR
                                    Attorney General



                                    By   !!Phy%
                                         Assistant
PP:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Corbln Lee Snow, Jr.
Grady Chandler
Pat Bailey
Howard Mays
APPROVED FOR THE ATTORNEY GENERAL
BY: Albert P. Jones




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