              THE   ATTORNEY        GENERAL
                        OF TEXAS

                         December 15, 1988




Honorable Robert E. Davis           Opinion No.   JM-993
Chairman
Productivity Bonus Commission       Re: Authority of the Pro-
P. 0. Box 12428, Capitol Station    ductivity Bonus Commission
Austin, Texas 78711                 created by article    6252-
                                    29, V.T.C.S.   (RQ-1459)

Dear Mr. Davis:

     YOU ask a number of questions concerning the Productiv-
ity Bonus Commission, article 6252-29, V.T.C.S.      We will
first describe   the Commission    and highlight    its  key
functions before discussing each of your questions.

     The Commission is charged with administering a program
designed to produce   savings for the taxpayers by reducing
the operating costs of state agencies through the improve-
ment of productivity by means of techniques specified in the
statute.   See aenerallv V.T.C.S.    art. 6252-29,   § 6.    The
Commission   is composed of     the comptroller     of    public
accounts, the State Auditor, the director of the Legislative
Budget Board, a member      of the governor's      staff,    the
classification  officer    appointed    under   the    Position
Classification Act of 1961 (art. 6252-11, V.T.C.S.),          an
officer or employee of a political subdivision of the state,
and three persons from private industry who have experience
in the administration of incentive pay programs.       V.T.C.S.
art. 6252-29, § 2(a).

     State agencies in the executive and judicial branches
of the government, with the exception of the governor's
office and institutions  of higher education, may elect to
participate in the program outlined     in the statute by
submitting a plan that 'outlines a strategy . . . that,   if
implemented, would cause the agency . . . to qualify for a
productivity  bonus."    Id. § 4(a).    The   Act   contains
detailed instructions and criteria for the Commission to use
in determining whether an agency plan produces cost savings
in its yearly operations which qualify   for a productivity
bonus. Id. §§ 5 and 6.. Bonuses actually awarded are pre-
sented to employees of the agency and result in an increase




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Honorable Robert E. Davis   -   Page 2   (JM-993)




of the funds available   to the agency for its operations
during a subsequent fiscal year. &    5 9. A portion of any
cost savings accrued through increased productivity is to be
returned to the fund in the treasury from which the agency
receives appropriations.  Id.

     Finally,

        [i]t is the intent of the legislature that a
        state agency or a division of an agency that
        reduces its cost of operations and qualifies
        for a productivity   bonus . . . may not be
        penalized for those savings through a corres-
        ponding reduction in appropriations for the
        subsequent fiscal biennium.

V.T.C.S. art. 6252-29, 5 9(e).

     You first ask whether the Productivity Bonus Act grants
powers of the executive branch to the Productivity     Bonus
Commission.

      The Productivity Bonus Commission is charged with very
specific duties     involving the execution   of a detailed
legislative mandate. Sea, e.a., V.T.C.S. art. 6252-29, §!j 7
and 8. Its executive powers are neither few nor de minimis.
$&8 Attorney General Opinion JW-141 (1984). The legislature
has expressly   conferred authority upon the Commission     to
execute the law and to determine       the manner   in which
appropriated funds are expended. It also has those powers
which are necessarily implied from the express grant of
authority.    Railroad
                 *       Commission  f Texa        Re d Arr ow
Freiaht Lines, Inc., 96 S.W.Zd 735 ;)Tex..Cit. zip. - Austin
1936,  writ ref'd).    The powers of the Commission thus are
wholly executive -- they will be used not for ceremonial    or
advisory purposes, but to execute the law and provide     for
the disbursement of appropriated funds in a pattern selected
by the Commission.

     You next ask:

        If the Commission   is an executive   agency,
        does the composition of the Commission -- the
        presence of members of the legislative branch
        -- violate  the doctrine   of separation   of
        powers?




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.

    Honorable Robert E. Davis - Page 3   (JM-993)




         Article II, .Q 1 of the Texas Constitution provides  for
    the separation of powers between the executive, legislative,
    and judicial branches.

            The powers of the Government of the State of
            Texas shall be divided into three distinct
            departments, each of which shall be confided
            to a separate body of magistracy,     to wit:
            Those which are Legislative to one: those
            which are Executive to another,    and those
            which are Judicial to another: and no person,
               c llection of nersons, being of one these
            ZpaZtments,     shall   exercise  any    power
            properly attached to either of the others,
            except in the instances herein      expressly
            permitted.   (Emphasis added.)

    Tex. Const. art. II, 8 1.            -
         The doctrine   of -separation of powers   serves as a
    "self-executing   safeguard  against  the encroachment     or
    aggrandizement of one branch [of government] at the expense
    of the other." Bu klev v. Valeo 424 U.S. 1, 122       (1976).
    "No political trut: is certainly Af greater intrinsic value
    or is stamped with the authority of more enlightened patrons
    of liberty." Madison, The Federalist No. 47, p. 324    (Cooke
    ed. 1961). "The purpose of separation and equilibration    of
    powers in general . . . [is] not merely to assure effective
    government but to preserve individual freedom." Morrison v.
    Olson, 108 S.Ct. 2597, 2637 (1988) (w        the dissenting
    opinion   of Justice   Scalia).   See also ."Separation    of
    Powers," 4 Encyclopedia   of the American Constitution   1659
    (1986).

         This office has consistently  held that any attempt  by
    the legislature to supervise the implementation of statutes
    through some means other than the normal legislative process
    specified in sections  28 through 40 of article    II of the
    Constitution of Texas violates the doctrine of separation of
    powers. Attorney  General Opinions JM-872     (1988); MU-460
    (1982); V-1305, V-1254 (1951); O-4609 (1942).

         The State Auditor and the Director of the Legislative
    Budget Board are officials of the legislative- branch     of
    government and they are answerable only to that branch.  The
    Auditor is appointed by the Legislative Audit Committee  and
    serves at the will of the Committee.  Gov't Code g 321.005.
    The Director of the Legislative Budget Board is appointed by




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Honorable Robert E. Davis - Page 4     (JM-993)




the Board and is only accountable to, and serves at the will
of, that legislative agency. Gov't Code 5 322.004.

     The doctrine of separation    of powers does not prevent
effective    coordination    and   cooperation    between    the
legislative and executive branches of~the government in the
effective resolution    of public problems.    State   Board of
Insurance v. Betts,  308 S.W.Zd 846 (Tex. 1958).     But     the
legislature may not assume general authority to execute      and
administer the laws. This principle is uniform        throughout
American law. See e.a., -son        v . Olson, suorq, I.N.S. v.
Chadha, 462 U.S. 919 (1985).     Many of the cases from other
states supporting   the doctrine   are collected   in Attorney
General Opinion JM-872 which concerned the impermissibility
of a legislative official -- the State Auditor -- supervis-
ing activities carried out by executive agencies in admin-
istering the law. The principle of separation of powers        is
especially important when the legislature attempts to manage
the expenditure of funds'already appropriated:

        [t]he Legislature is no longer authorized  to
        concern itself with the further . . . dis-
        bursement of the funds, the constitutional
        inhibition   being not only against    actual
        usurpation of the function, but also against
        one [branch] setting itself up in a supervis-
        ory capacity   over the actions of another.
        [Citation omitted.]
                              ****


        [T]he fiscal administration of the affairs of
        the government [is] an executive duty.

Attorney General Opinion V-1254 (1951), at 15. Thus, the
Productivity Bonus Commission is unconstitutionally  consti-
tuted because some of its members are answerable only to the
legislature and share responsibility with executive officers
for executing the law.

     Because the inclusion of officials answerable only to
the legislature in command of an executive agency violates
the doctrine of separation of powers,  you ask whether  the
Commission may continue to function if the legislative
officials occupy "advisory positions" only or abstain  from
voting.




                                p. 5081
    Honorable Robert E. Davis - Page 5   (JR-993)




          There is no authority for either proposition.        The
    statute certainly  expects that the legislative     officials
    named to.the Commission will discharge their duties.     These
    tasks   include deciding which agencies are entitled        to
    productivity bonuses and the amount of the bonuses to be
    awarded. V.T.C.S. art. 6252-29, gg 8 and 9. Such duties
    are not merely advisory but rather involve the exercise     of
    fact-finding and the application of discretion in executing
    a public policy.    Officials  and officers    of the state
    government, consistent with their duties to the people, may
    not pick and chose from among the duties they will execute.
    Additionally, the mere q'advisory" presence of officials   who
    serve only at the will of the legislature in command of an
    executive agency may lead to an improper encroachment of one
    branch into the affairs of another.1 See Attorney     General
    Opinion JR-872 (1988).

         You also ask:

               Does the Commission have authority to make
            the awards specified  in the statute out of
            funds already appropriated to the agencies or
            their divisions,   which participate   in
            productivity bonus plan when some of thz
            appropriated funds are saved in connection
            with    the     productivity     improvements
            contemplated by the Act?

    Because we find that the composition     of the Productivity
    Bonus Commission is unconstitutional,    we do not consider
    this question.




       1. This opinion should not be taken to mean that every
    entity composed   of members   or officials   of    different
    branches  of the government    is unconstitutional.      Some
    entities consisting of members  from the different   branches
    of government may be authorized by the constitution.    Other
    bodies too numerous to list here have many duties that are
    purely advisory or merely ceremonial    and do not involve
    detailed tasks requiring  the exercise of discretion    about
    the expenditure of appropriated funds. In such a case, the
    function of the     body may be     appropriate  under    the
    constitution because nothing in the doctrine of separation
    of powers prevents coordination and cooperation between   the
C
    branches of government.




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Honorable Robert E. Davis - Page 6     (JM-893)




                       SUMMARY
           The Productivity  Bonus Commission   exer-
        cises functions  of the executive branch   of
        the Government.  Because of the doctrine   of
        separation of powers, its composition may not
        include officials   appointed by, and only
        answerable to, the legislature.  Tex . Const.




                                   J b
        art. II, § -1.
                                       Very truly yo


                                   -        k,
                                       JIM     MATTOX
                                       Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLBY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by D. R. Bustion, II
Assistant Attorney General




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