                                      March     29,    1962


Honorable    J. W. Edgar                         Opinion       No.   WW-1293
Commissioner    of Education
Texas Education    Agency                        Re:     Whether      the position         of
Austin,   Texas                                          Investment       Officer       and of
                                                         Assistant       Commissioner          for
                                                         Vocational       Rehabilitation
                                                         and Special        Education        may
                                                         be paid an annual            salary
                                                         rate    of $11,000       under      the
Dear     Dr.     Edgar:                                  facts     submitted.

                   Your request      for   an opinion         on the    above    subject
matter         reads   as follows:

                 "In January,        1962,      the State     Board of
         Education      completed       plans      for expanding       the
         Permanent      School      Fund Investment          Program     to
         include     corporate       securites.          This expansion
         was made to Implement             statutes       enacted    by the
         57th Legislature,           Regular       Session.       The position
         Investment      Officer,       at an annual         salary    of $ll,OOO.,
         was established          to serve        as administrative         head
         of this     program.

                 "The Board also established                the position         of
         Assistant       Commissioner         for Vocational        Rehabilitation
         and Special        Education       at an annual       salary     of
         $11,000.        This position         was established         to give
         direction       to five     divisions       of the Texas Education
         Agency that        are concerned         with  services       for dls-
         abled     individuals.

                 "At the direction         of the State         Board of
         Education       a request     for approval       of these     positions
         was made to the Classlflcatlon                Officer.       This
         request      was made in accordance           with House Bill
         189, Acts of the 57th Legislature,                  codified      as
         Article      6252-11, V. C. S.           A copy of this       request
         to the Classification            Officer     and a copy of the
         descriptions        of the jobs are attached.               The
         Classification        Officer     with    the advice       of the
                                                                                c




Honorable    J.   W. Edgar,     page    2 (WW-1293)




      Legislative         Audit   Committee     approved each       of
      the posltlons         enumerated      above and assigned
      these     positions       to Salary    Group 21.

              “At the direction         o? the State         Board of
      Education      a request     was made to the Governor
      for the two positions           named above to be excluded
      from the Position         Classification           Plan under     the
      provlslon      of Section     2, House Bill           189, Acts of
      the 57th Legislature.              In accordance         with this
      request     the Governor      excluded        each of these
      positions      from the Position          Classification        Plan.
      Copies    of the Instruments           affecting        these approvals
      are attached.

              “Mr. Vane Burnett        was appointed      to fill      the
      new position,      Investment       Officer.     Mr. Charles
      Eskridge    was appointed        to fill     the new position,
      Assistant     Commissioner       for Vocational      Rehabilitation
      and Special     Education.

              “The Comptroller      of Public    Accounts   has ref-
      used to pay the salary         of the Investment      Officer
      and of the Assistant         Commissioner     for Vocational
      Rehabilitation      and Special     Education     at an annual
      salary      rate of $11,000.

               “Does the Governor         under the provision    of
      House Bill       189, Acts of the 57th Legislature,            have
      the authority         to exclude     a job from the Classification
      Plan when such a job has previously              been classified
      and assigned        a salary     group number by the Classl-
      flcation      Officer?

               “If the answer     to the above question          is In
      the affirmative,        does the Comptroller         of Public
      Accounts     have the authority         to Issue   warrants
      from the appropriations          to the Texas Central
      Education     Agency    for the payment        of salaries
      established       for these   positions      at an annual
      rate     of $11,000   each?”
Honorable      J.   W. Edgar,         page    3 (WW-1293)




                Section      2 of House Bill           189, Acts of the 57th
Legislature,         Regular     Session,       Chapter    123, p. 238 (codified
in Vernon's        as Article       6252-11, Vernon's          Civil Statutes)
excepts      from the Position           Classlflcatlon        Plan such persons
"as may hereafter            be excluded        from such Position      Classification
Plan by executive            order    of the Governor        or by direction        of
the Legislature."

               Section       5 of House         Bill     189 also       provides:
                II . . .Should        any governing           board       or executive
       head of an agency              affected        by the provisions               of
       this    Act find        need for the employment                    of a person
       in a class          or kind of work which he believes                          Is
       not described           In the Position             Classification             Plan,
       such board          or executive         head shall          notify      the
       Classification            Officer       of the facts,            and such
       Classification            Officer       shall     promptly         nrovlde,          :
       within       the llmltatlons            of the General             Appro-            :
       priatlons         Act and subject             to the approval            of
       the State         Auditor      after      obtaining        the advice
       of the Legislative              Audit      Committee,          either      an
       existing        or a new class            description          of work and
       a corresponding            salary      range      which will          permit
       such needed          employment.           Notification            of such
       action       shall    be macje :,o the Cs:1!ptroller                  of Public
       Accounts        by the ClaselficatiTn                 Ofricer.         Nothing
       in this        paragraph       or in this         Act,     however,        shall
       be so construed            as to authorize             an increase           In the
       number of positions                or In the amount of appro-
       priations          as may be set forth              for any such agency
       in the General            Appropriations            Act."

              Under the facts       submitted      with you request            as
evidenced     by letters      of Mr. Everett       Anschutz,       Classification
Officer,    dated    February     5, 1962, to the Comptroller                of Public
Accounts    and the approval        of the Governor          of the exclusion
on February      15 and 16, 1962, It Is our opinion                 that     the
position    of Assistant       Commissioner       of Vocational         Rehabilitation
and Special     Education      and the position        of Investment           Officer
have been eucl~uded fr>m the Position               Classification           Plan
pursuant    to the above quoted         provisions       of House Bill          189 of
the 57th Legislature.           You are therefore          advised     that     the
                                                                                           . ...   .




Honorable    J.   W. Edgar,      page   4 (WW-1293)




Comptroller  of Public      Accounts      has authority           to issue      warrants
from the appropriation        to the Texas Central              Education       Agency
for the payment     of salaries      established      for       these    positions
at an annual   rate    of $11,000      each.



                                   SUMMARY

             Where the positions           of Investment          Officer
             and of Assistant          Commissioner         for Vocational
             Rehabilitation         and Special        Education       of the
             Central      Education     Agency has been excluded
             from the Position          Classification          Plan by
             executive       order   of the Governor           and by
             direction      of the Classification              Officer
             with    the approval       of the State         Auditor,
             such positions         may be paid an annual
             salary      in excess     of amounts        provided
             for In the Position           Classification           Plan.

                                              Yours    very    truly,

                                              WILL WILSON
                                              Attorney General          of   Texas

                                                      /GG
                                         BF John Reeves
                                            Assistant
JR:kkc

APPROVED:
OPINION COM"TT"'E
W. V. Geppert,  Chairman

Howard Mays
Vlrgie Pulliam
Fred Ward

REVIEWED FOR THE ATTORNEY GENERAL
BY:  Houghton Brownlee, Jr.
