                               November      25.    1974                                 .


The Honorable Neil Caldwell                                 Opinion No.        H- 456
Chairman
Appropriations  Committee                                   Re:      Ouestions   concerning
House of Representatives                                             salaries  of non-faculty
P. 0. Box 2910                                                       employee*    of colleges
Austin,  Texas 78767                                                 and universities

Dear Representative          Caldwell:

    Your     opinion    request   raises   the following          questions:

       Are non-faculty     employees   at colleges and
       universities   paid from auxiliary enterprise
       funds entitled to the benefits of the salary
       increases    provided for in Article    IV, Sec-
       tion 46, House Bill No. 139, Chapter 659,
       63rd Texas Legislature,       Regular Session,
       1973 [The Appropriations      Act]?

In the event we should determine that such employees   are not entitled   ‘.                    +.
to the benefits provided by Article IV, section 46. you further request ‘.
that we decide whether they are properly included as members     of. the;
Teacher Retirement    System.

    Section 51.002 of the Texas Education Code provides for the
retention of “control”   of certain sums of money collected by the
higher education i.nstitutions  enumerated in section 51.001(a).. Among
the categories  of funds so specified  are:

       .     .   .


       (2)       charges    for use of rooms       and dormitories;

       (3)       receipts   from meals,     cafes    and cafeterias;

       .   . .

                                               p.    2098
The Honorable     Neil Caldwell,    page 2    (H-456)




No definition of auxiliary enterprise is contained in the Texas Education
Code.    We assume for the purposes of this opinion that enterprises
generating the type of funds mentioned in Section 51. 002(a)(2) and (3)
are the auxiliary enterprises  about which you inquire.                                   ‘.

    Control over auxiliary enterprise   funds, however,  is subject to
the operation of section 51.006.  Attorney General   Opinion V-54 (1947).
That section provides:

        No part of any of the funds listed in Section 51.002
        of this code shall ever be used to increase    any
        salary beyond the sum fixed by the legislature      in
        the general appropriations    act, and the provisions
        of this subchapter are subordinate to the general
        appropriations   act for the support of each institution.
        (Emphasis    added).

     It is clear from a~review     of the authorities  in point that the effect,of   ..’
section 51.006 is to make the      use of the funds over which institutional       i    ,.::
“control” is retained subject      to the will of the Legislature   as expressed                  ‘: ~
in the biennial Appropriation      Act.   Attorney General Opinions V-715 (1948);
                                                                                                 ,.
v- 54 (1947).

     Auxiliary  enterprise     funds, even though generated internally by the .
operation of the enterprise,       are subject to appropriation      by the Legislature’:      :’ ‘~
Attorney    General Opinion V-715 (1948).         See also Article IV section 17 of
the Appropriation      Act of 1973 (reappropriating      balances within local insti-
tutional funds at the cIose of fiscal year 1973 and the income to those funds
for the fiscal years 1974 and 1975 for continued use by the respective
state institutiuns);   Article IV, section 20 (allowing transfers         “between items
of appropriations     0 0 a regardless     of whether said appropriation      items are
General Reverue or local funds in character           . . . ‘I); and Article    IV,. section
27b (providing for the deposit of local funds other than “Local Income fiqm.
Educational    Activities”[including    auxiliary   enterprise    funds], “for which
appropriations    are made in [Article IV, Appropriations           Act of 1973]).”    For.
this reason use regulations       imposed by the Appropriations        Act upon these
funds are a valid exercise       of Legislature   authority within that Act.       Thus,
it is clear that the Legislature      can control the use to which local (e. g., -,
auxiliary enterprise)      funds are put.     The answer to your question,       then,
turns on whether the Legislature        da by the Appropriations        Act exercise
that control with respect to auxiliary enterprise          funds.



                                             p.   2099
                                                                                   .


The Honorable       Neil, Caldwell,   page 3     (H-456)
                                                                           .
                                                                               .


    Article   IV,   section   46 of the Appropriations     Act   states:

             NON FACULTY       SALARIES.      a.   For the fiscal
        year beginring September 1, 1973, within the limita-
        tion of funds available for salaries     and wages of non-
        faculty employees,     the following increases    over the
        August 1973 rates shall be provided for non-faculty
        employees   effective September     1, 1973:




            b.   For the fiscal year beginning September 1,
        1974, all non-faculty   employees  will receive an
        increase   of 3.4% over their August 1974 rate.

The section clearly provides that “all non-faculty     employees”   be given
the raises indicated.    The question presented by your request,     then,
ultimately depends upon the meaning ascribed      to the phrase “all non-
faculty employees”    in the context of the above section.

    Neither sections 51.001. et seq.,     of the Texas Education Code or the
Appropriation   Act of 1973 defines the term “non-faculty    employees. ‘I
However,    an examination  of the definition given that term by implication
in a closely related part of the Code, is illumi.nating.

        ‘Faculty member’ means a person who is employed
        by an institution   of higher education on a full time
        basis as a member of the faculty or staff and whose
        duties incl.ude teaching,     research.   administration,
        including professional     librarians,    or the performance
        of professional   services,     but does not mean a person
        employed in a position which is in the institution’s
        classified  personnel   system or a person employed in
        a similar type of position if the institution does not
        have a classified   personnel     system.    Texas Education
        Code, 5 51.352(4).    (Emphasis     added)

     Clearly,  auxiliary enterprise   personnel are “employed    by an institution
of higher education. I’ It is also evident that they.do not come within the
definition of ‘,‘faculty member”   as provided in the above section.    We con-    .
elude from a reading of the specific provisions     of section 51.352 in light
of the clear language of the salary increase provision      of Article IV, section 46

                                            p.   2100
                                                                                           ‘. .
                                                                                                  .



The Honorable   Neil Caldwell,   page 4      (H-4’56)                  ..    .               .’




of the Appropriations  Act of 1973, that the Act did not specifically  or by
implication  attempt to distinguish between different groups of non-faculty
employees   who were granted a raise within the limitations   of funds
available.

    Our affirmative  conclusion in response to your first          question              renders
discussion  of your second questi,on unnecessary.
                                                                                            ,.
                                                                                     .
                          SUMMARY

           Non-faculty  employees   at colleges   and universities
       paid from auxiliary enterprise     funds are entitled to, the                                  ”   .
       benefits of the salary increases    provided for in Article
       IV, section 46 of the Appropriations     Act of 1973 within                         . “’
       the limitation of funds available.

                                           Very   truly yours,
                                     A                  i




APPROVED:
                                 c/       Attorney      General   of Texas           .,      1


    ..,



                                                                                 I   .




DAVID M. KENDALL,       Chairman
Opinion Committee




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