                     THE        ATNBRSEY   GESERAL
                                   OF?l?ExAS (
                                AUUTXN.      TKXAU       7iB7ll




                                           July 25,    1975


The Honorable        M. James    Merits,    D. D. S,              Opinion   No. H-   648
Secretary-Treawrsr
Tcxar State Board of Dental Examiners                             Rc:   Propriety  of rupplemental
Capital National Bank Building                                    Balary for parttime    executive
Auetin, Texar   70701                                             recretary   for Texae State Board
                                                                  of Dental Examiners

Dear Dr.   Morite:

         You have arked our opinion about the legality of ralary aupplementr
made by the Board of Dental Examiner8         to compensate   ita part-time   Executive
Secretary   for additional dutier assumed at the requccrt of the Board.        Those
additional duties concerned    the administration   of the dental laboratory    and dental
technician regie.tration  program   mandated by article 4551f Q 6, V. T. C. S., which
wae enacted by the 63rd LegMature       in 1973.    The State Auditor has queationed
the legality of the payments already made for rupplemental         ralary,   and the State
Comptroller    has refused to honor voucherr for further payments.

         Section 6 Article 4551f, V. T. C. S., require6 dental laboratorier    and
dental technician8    to register with the Texas State Board of Dental Examiners each
year, and to pay a fee “to the Dental Registration      Fund. ” It creates the Dental
Laboratory     Advisory   Board to advise the Board of Dental Examiners     about matters
concerning    dental laboratories  and dental technician*.    The 1973 Act further pro-
vided:

                     The income received       from fee8 adthoiiced   by thicl Act
                     io hereby appropriated       to the Texar State Board of Dental
                     Examiner@ for the fircal yearn ending 1974 and 1975 for
                     its expenditure0     for the implementation   of thir Act and for
                     the purpoeer    lirted in the General Appropriations     Bill as
                     parred by the 63rd Legislature.        Acts 1973, 63rd Leg.,
                     ch. 65, $ 3.

        The “Dental Regirtration    Fund” ir a creature of an earlier    rtatute, article
4550a. rection 3 of which provider that all annual regirtration    feer collected by the
Board of Dental Examiner8     are to be placed in the State Treasury to the credit of
the Fund, that all expenditure1   from the fund rhall be “for. the purporea and in the
amounta fixed by the Legirlature     in the general appropriationa  billa, ” and that the




                                               p. 2845
The   Honorable     M.   Jamer    Morits,     D. D. S. - Page     2     (H-648)




State Board of Dental Examiners             shall be authorized        to employ and to compensate
from such special funds employees               and such other persons          ‘I. . . to assist the
local prosecuting      officers    . . . and to carry        out the other purposes        for which said
fund is hereby appropriated.          ” As amended in 1961, section 4 of article                  4550a,
authorizes    the Board to employ          an Executive      Secretary     “to aid the Board in per-
forming    the duties prescribed        in this Section”      and empowers         the Board to fix his
salary to be paid out of the “Dental            Registration     Fund. ‘I It requires       the Executive
Secretary    to give bond for the faithful performance              of his duties and for “the safe-
keeping and proper        disbursement       of said ‘Dental Registration           Fund’ and all other
funds coming into his hands. ‘I Cf. Attorney               General   Opinion O-4676 (19421. After
enactment     of section 6 of articF455lf,            the Board of Dental Examiners              directed
that all functions    of the Advisory       Board would be handled through the central office
of the Board of Dental Examiners             (Board Minutes,        Nov. 3, 1973).        In Januar
the Board of Dental Examiners             and the Laboratory        Advisory       Board unanimous
                                                                                              ----+-      y
approved     assignment’-     to the part-time       Executi’ve   Secretary       of the Board of Dental
Examiners      of the major     responsibility      folp administrative       ‘functions   pertaining’      _
to the Dental Laboratory         Advisory      Board and its work for a salary of “$500 per
month beginning      September,        1973. ” (Board Minutes,          Jan. 13-14, 1974).

        The current  General          Appropriations         Act, (Acts. 1973,63rd    Leg.   , ch. 659, p.
1952) specifies the following         for the Board        of Dental Examiners:

                                 BOARD       OF DENTAL        EXAMINERS

                                                                   For the Years Ending
                                                             August 31,          August 31,
                                                                 1974               1975

                    Out of the Dental Registration           Fund:
                    Personal  Services--

                2. Executive     Secretary     [part-time)            12,000            12,500

                    The amounts   specified above are appropriated       from revenues
             received   during ea.& year ,of. the bienniuti    beginning   with. the effective
             date of this Act, and from any balances        on hand at the beginning     of
             each ,fiscal year of such bi,ennium‘in   ,the’Dental R&&ration         Funa
             (No. 86).

         Attorney   General    Opinion H-553 (1975) cited authority      to the effect that
statutea which provide      for the compensation      of public officers  are to be construed
in favor of the government,       and concluded    that artiule  6813b, V. T. C:S. precluded
the salary    supplementation     considered   there.     That 1965 statute (which repealed
inconsistent    laws and parts of laws) reads in part:




                                               p.   2046
     The Honorable      M. Jamer    Morite,   D. D. S. - Page   3 (H-648)



                       Section 1. From and after the effective date of thir
                Ac t,a ll   lalarier of all State officerr      and State employeer,
                including the ralarier paid any individual out of the General
                Revenue Fund, shall be in ouch sumr or amounta ae may be
                provided     for by the Lcgirlature       in the biennial Appropriationr
                Act.    Ii ir rpecifically    declared to be one of the intentr hare-
..
                of tliat the Legirlature      shall al60 fix the amount of rupplemen-
                tal lalariee hereafter,       out of court feer and receiptr,      to be
                prtd to the clerks and other employeeo            of the Courtr of Civil :
                Appealr,      the Supreme Court and the Court of Criininal
                Appeals.       It ir further provided that in inrtancer wheie the .
                biennial    Appropriation8      Act doer not rpecify or regulate the
                ralarier    or compenration       of a State official or employee,      the
                law specifying       or regulating the ralary or compenration        of
                luch official or employee         ie, not rurpended by thin Act.

              We rlro    quoted article   3, rection   44 of the Texan    Conrtitution   which
     readr:

                      The Legirlature      rhall provide ey law for the compenration
                of all officers,    servant%, agent% and public contractors,       not
                provided for in thim Conrtitution,       but #hall not grant extra com-
                penration to any officer,      agent, servant,    or public contractor%
                after much public rervice       #hall have been performed     or con-
                tract entered into, for the performance        of the rame; nos grant,
                by appropriation      or otherwire,   any amount of money out of the
                Treasury     of’ the State, to any individual,     on a claim, real or
                pretended,     when the rame rhall not have been provided for by
                pre-exirting     law; nor employ any one in the name of the State,
                unlerr authorized by prc-exirting        law.

              We believe there provirionr   control.    Although partr of article 45508 and
     meetion 6 of article 455lf are rueceptible    of other interpretationr,  they murt be read,
     if pormible,   in a manner conmimtent with article 6813b and the conrtitutional   language.
     Madden v. Hardy, 50 S. W. 926 (Tex. Sup. 1899); Allen v. Davir, 333 S. W. 2d 441
     rr     C’ A        -- Amarillo. 1960, no writ).    In Madden v. Hardy the Supreme
     Co%     o;‘+eE     raid:

                        We have under conrideration     a statute, the conrtruction
                        of which in very difficult.  One conrtruction    would give to
                        the offictal some compenration    for hir lervice in addition
                        to hir salary.   The statute admitm of another conrtruction
                        which would not have thir effect.     In much a case the latter
                        rhould be adopted.    50 S. W. at 928.




                                                p.   2047
,




    The Honorable    M. Jamer     Morita,   D. D. S. - Page 4      (H-648)



             That portion of article 455Oa which authorises     the Board to fix the salary
    of the Executive Secretary     must be read in light of the portion allowing expcndi-
    tures from the Dental Regimtration Fund “in the amounts fixed by’the Legislature
    in the general appropriations    bills. ‘I Accordingly,  in our opinion the Board is
    authoriced   to fix the salary of the Executive Director    only within the limits set by
    the Legislature    in the general appropriations    act.

             Section 6 of article 4551f, appropr,iating       dental laboratory    and dental tech-
    nician registration    fees to the Board of Dental Examiners          “for its expenditures   for
    the implementation      of this Act and for the purposes      listed in the General Appropria-
    tions Bill, ” does not expressly       permit the Board to supplement the salary of its
    part-time    Executive Secretary;or       if it did, there are no rtandardm to guide the
    Board in determining       the additional amount which’might        be allowed.   See Attorney
    General Opinion H-553 (1975).          The general rule is that an officer is entitled to
    no additional compensation       for discharging    additional duties assigned to him unless
    the law expressly     allows it. 47 Tex. Jur. 2d Public Officers         5 177. We are aware
    of no different rule to be applied to “part-timaces                or positionr.

             The Executive Secretary      of the Board ir charged with the proper disposi-
    tion of the Dental Regiutration    Fund from which his ialary       ir paid.   Article 4550a,
    section 3 specifies   that expenditures    from the fund shall be “for the purposes and
    in the amountr fixed by the Legislature       in the General Appropriations     Bills. ” We
    do not believe the Legislature     intended that the srlary it fixed for the part-time
    Executive Secretary     could be increased     to suit the pleasure of the Board if the
    duties assigned to him by the Board of.Examiners           were changed to include some re-
    rponsibility  for the newly created: Advisory       Board.   So far as we have been inform-
    ed, he remained a part-time      Executive Secretary       even after assuming   the addition-
    al duties.

            In Attorney General Opinion O-1006 (1939) Attoiney   General Mann was
    asked to construe provirions   in the then-current General Appropriations   Act havir.3
    to do with “partdime”  and “full -time” positions.  On page 6 of that opinion, and or.
    subsequent pages, are these parsager:

                     It appears to us that the Legislature       evidently . . .
                     considered   alI salaiicd  positions    nairied’.in the Act
                     be clarmified aa [“full-time”       poritions],     unless
                     it had otherwise   provided by designating a particular
                     position a~ a ‘part-time’    one.    The Legislature       is
                     presumed to have known exactly what was in the Act
                     . . ..

                      In connection   with what we have just laid,      we call




                                               p. 2040
The Honorable   MA. James   Moritz,       D. D.S.     - Page   5   (H-648)




                your attention to the fact that the Act makea
                . . . specific appropriations     for part-time
                employees     . . . . [ s]uch appropriations    are
                as follows:

                   State Board of Dental Examiners,    item 2,
                 ‘Secretary  part-time $1060’; . . . (Emphasis
                added)

                . . . Those listed above are definitely part-
                time employeea      Some of them are not ex-
                pected to work full-time   each day, but only
                a part thereof.   . . Their positions are espe-
                ctally created by a specific   appropriation
                made for that purpose.



                It seems to us that the Legislature  has, by the
                Act under review,   made a particular,   definite,
                limited and precise   appropriation for each and
                every salaried position provided for therein . . . .

         Consequently, in our opinion,   the State Auditor and the State Comptroller
of Public Accounts are correct   in treating the salary supplement paymentwas
unauthoriaed   by law.

                                  SUMMARY

                Salary supplement payments to the part-time   Ex-                   .
                ecutive Secretary  of the Board of Dental Examiners
                in excess of the salary fixed by the General Appro-
                priations Act are unauthorized.

                                             *Very        truly yours,




                                                    Attorney   General   of Texas




                                      .    p. 2849
