             THE     Amrc




Honorable Robert S. Calvert         Opinion No. M-850
Comptroller of Public Accounts
Capitol Building                    Re :   Method of arriving at the
Austin, Texas 78711                        monthly salary, ,daily
                                           salary and hourly rate of
Dear Mr. Calvert:                          pay for State em,ployees.

             Your request for an opinion asks the following
questions:

          “For those agencies in Articles I, II, III,
     and the Central Education Agency and Schools for
     the Deaf and Blind in Article IV of House Bill 2,
     Acts of the Second Called Session of the Sixty-
     first Legislature, the following questions arise:
        - .“l. What is the legal method for arriving at
     the monthly salary for line item employees, classi-
     fied employees, and employees exempt from the
     classification act, where such employees are paid
     on an annual basis?

          “2. What is the legal method for arriving
     at the proper rate of one days pay for the em-
     ployees set out in question No. 1 when they re-
     sign with one day’s pay due them?

          “3. What is the legal method for arriving
     at the proper rate of salary for an employee
     hired on a daily basis at so much per day?

          “4. What is the legal method for arriving
     at the proper rate per hour of salary for an em-
     ployee hired on an hourly basis?”

          Section 2 of Article V of House Bill 2, Acts of the
61st Legislature? 2nd C.S., 1969 (General Appropriations Act for
the biennium ending August 31, 1971), provides in part:

          “Sec. 2. METHOD OF SALARY PAYMENTS.   a. All
     annual salaries appropriated by this Act shall be

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Hon. Robert S. Calvert, page 2          (M-850)



     paid in twelve (12) equal monthly installments,
     except as otherwise provided in Article II of
     this Act. Except for patrolmen and other law en-
     forcement ~positions in the Department of Public
     Safety which shall be paid only at the annual
     rates stipulated in the particular language ac-
     companying the appropriations therefor, this
     paragraph shall not be construed so as to pre-
     vent the head of any other agency of the State
     from paying less than the maximum s~a.Laryrates
     specified in this Act for line-item positions,
     or the employment of part-time employees to fill
     regular positions provided for in this Act, so
     long as the salary rates for such part-time em-
     ployees are proportional to the regular rates
     for full-time employment.

          "It is further provided that agencies of
     higher education and the schools for the blind
     and deaf in Article IV of this Act which make
     contracts for less than a twelve-month period
     may pay salaries in equal monthly payments for
     the period contracted for."

           Subdivisions   (f) and (g) of Section 1 of Article V
provide:

          "f. PART-TIME EMPLOYEES.   Regular full-
     time positions paid out of funds appropriated
     for 'salaries of classified positions' may also
     be filled by part-time employees.   In computing
     the salaries of these employees, the rates of
     pay shall be proportional to the rates authorized
     for full-time classified employment.   It is fur-
     ther provided that part-time employees as described
     in this subsection shall be subject to all of the
     provisions of this Section.

          "g . HOURLY EMPLOYEES.  It is the intent of
     the Legislature that hourly employees shall re-
     ceive per hour rate increases proportionate to
     those provided in this Act for full-time salaried
     classified employees."

          It was held in Attorney General's Opinion C-161 (1963)
that the salary of part-time employees is to be determined in
the same manner as a full-time employee, but on a proportional

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Hon. Robert S. Calvert, page 3         (M-850)



basis.  In view of the provisions of Subdivision (g) of Section
1 of Article V, it is our opinion that hourly employees shall
receive the same per-hour rate proportionate to the annual
salaries of regular employees.

          Subdivision   (f) of Section 2 of Article V provides:

          "f. Funds appropriated in this Act for salaries
     and wages may be paid for all of the employee's
     accumulated vacation leave and for one-half of his
     accumulated sick leave to the estate of an employee
     when said employee dies while employed by the State
     of Texas. The payment shall be calculated at the
     rate of compensation being paid the employee at the
     time of his death."

          Article 5165a, Vernon's Civil Statutes, provides:

          "Section 1. All state employees who are em-
     ployed in the offices of state departments or in-
     stitutions 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 twenty-
     four (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.

          "Sec. 2. Except as otherwise provided in Sec-
     tion 1 of this Act, and except on legal holidays
     authorized by law, the normal office hours of
     state departments, institutions and agencies shall
     be from 8:00 a.m. to 5:00 p.m., Mondays through
     Fridays, and these shall be the regular hours of
     work for all full-time employees; provided, how-
     ever, that such normal working hours for employees
     of state departments and agencies in the Capitol
     Area in Austin may be staggered in such manner as
     biennial Appropriations Acts of the Legislature
     may stipulate or authorize in the interests of
     traffic regulation and public safety. Where an
     executive head deems it necessary or advisable,
     offices may also be kept open during other hours
     and on other days, and the time worked on such
     other days shall count toward the forty (40)

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Hon. Robert S. Calvert, page 4       (M-850)



     hours per week which are required under Section
     1 of this Act. It is further provided that ex-
     ceptions to the minimum length of the work week
     may be made by the executive head of a state
     agency to take care of any emergency or public
     necessity that he may find to exist. None of
     the provisions of this Act shall apply to persons
     employed on an hourly basis."

           It is noted that State employees are generally em-
ployed on an annual salary basis. The annual salary is re-
quired to be paid monthly in twelve equal installments.   No
provision is contained detailing the proper rate of pay of such
employees for installment payments of less than one month.    It
has been the administrative policy of the State Auditor and
the State Comptroller that such employees' pay "for any period
of less than a month (at the beginning and/or ending of his
employment) should be calculated on the basis of the number of
days employed during that month as compared to the total number
of days in it." Letter dated September 3, 1963, from the State
Auditor to all State departments.

           The courts will ordinarily adopt and uphold depart-
mental construction by agencies charged with the responsibility
for the administration of a particular statute, and such con-
struction will not be overturned unless the construction is
unreasonable or clearlv wrong.   53 Tex.Jur.2d 259. Statutes
§177; Humble Oil and Refining Co. v. Calvert, 414'S.W.2d 172
(Tex.Sup. 1967). This is particularly true in those instances
where statutory provisions-have been reenacted without material
change. The Legislature is presumed to have known of such
construction and nractice and acauiesced in it bv its failure
to amend or change it. Burroughs' v. Lyles, 142 Tex. 704,
181 S.W.2d 570 (1944).

           In the instant case the Legislature has acquiesced in
the departmental construction of the State Auditor and State
Comptroller in determining the rate of pay of regular employees
for periods of less than a month.

          You are accordingly advised in answer to your first
question that the monthly salary for line-item employees, classi-
fied employees, and employees exempt from the classification
act (Article 6252-11, Vernon's Civil Statutes), where such
employees are paid on an annual basis, is determined by dividing
the annual salary for such employees by twelve, since such em-
ployees are required to be paid monthly in twelve equal install-
ments.
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Hon. Robert S. Calvert, page 5        (M-850)



          In answer to your second question the proper method
of calculating such employees' pay for any period of less than
a month is determined by multiplying the number of days employed
(by employed is meant the number of calendar days elapsed from
the first day of employment during the month through termination
date, both inclusive) during the month by the monthly salary of
that month and dividing the resulting figure by the number of
calendar days in that month.

          In answer to your third question you are advised that
our answer is the same as our answer to your second question.   The
daily rate is determined by dividing the monthly salary by the
number of calendar days in that month.

          In answer to your fourth question the proper rate per
hour of salary for an employee hired on an hourly basis is to be
determined by dividing the daily rate by the number of hours of
the normal work day for the particular employment, but not less
than eight hours. Article 5165a, Vernon's Civil Statutes; House
Bill 2, Acts 61st Leg. 2nd C.S., 1969.

           Furthermore, in answer to your third and fourth
questions, where the Legislature has made a specific lump sum ap-
propriation for hourly wages without placing limitations on the
rate of pay to be paid hourly employees, then the head of the
agency to whom the appropriation is made has the sole dis-
cretion to fix the hourly rate of pay for such employees.  See
for example, Item 24 of the appropriation to the Highway De-
partment in the current General Appropriations Act (House Bill
2, Acts 61st Leg. 2nd C.S., 1969, at p. 778 of the Session Laws).

          Summarizing the foregoing it is our opinion that the
only limitations placed on an employee’s salary by the Legislature
are the annual salary appropriated by the Legislature and the
monthly salary to be paid in twelve equal installments.

                       SUMMARY

          The monthly salary for State employees is
     ;;;;:tined by dividing the annual salary by
            . An employee's pay for any period of less
     than a month is determined by multiplying the
     number of days employed (by employed is meant
     the number of calendar days elapsed from the
     first day of employment during the month through
     termination date, both inclusive) during the month


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Hon. Robert S. Calvert, page 6        (M-850)



     by the monthly salary of that month and dividing
     the resulting, figure by the number of calendar
     days in that month.   The proper rate per hour
     of salary for an employee on an hourly basis is
     to be determined by dividing~the daily rate by
     the number of hours of the normal work day for
     the particular employment, but not less than
     eight hours. However, where the Legislature has
     made a lump sum appropriation for hourly wages
     without placing limitations on the rate of pay
     to be paid hourly employees, the head of the
     agency to whom the appropriation is made has the
     sole discretion to fix the hourly rate of pay for
     such employees.




Prepared by John Reeves
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Glenn Brown
Houghton Brownlee
Pat Bailey
Fisher Tyler

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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