                                The Attorrmy General of Texas

JIM MATTOX                                    December 19, 1985
Attorney General


Supreme Court Building         Bonorable Oscar B. gauzy             Opinion No. JM-393
P. 0. BOX 12543                Chairman
Austin, TX. 75711. 2549
51 W75.2501
                               Committee on Jurisprudence           Re: Interpretation of Rider No. 7
Telex 9101574-1367             Texas State Senate                   to the appropriation for the Texas
Telecopier 512i47502SS         P. 0. Box 12068, Capitol Station     Adult Probation Commission in the
                               Austin, Texas   78711                General Appropriations Act passed
714 Jackson, Suite 700
                                                                    by the Sixty-ninth Legislature
Dallas. TX. 752024503
2141742.9944                   Dear Senator Mausy:

                                    You have asbsd a question about language in a rider to the
4824 Alberta Ave., Suite 160
El Paso, TX. 79905.2793
                               General Appropria::Lons Act passed by the Sixty-ninth Legislature.
915/533-3464                   Rider No. 7 to the appropriation for the Texas Adult Probation
                               Commission provides:

1001 Texas, Suite 700                    It is tb.e,intent of the Legislature that the Adult
Houston. TX. 77002-3111
                                         Probation Commission shall reduce per capita state
7131223.55%
                                         aid payments to local probation departments by a
                                         sum equal to the amount by which the local proba-
606 Broadway, Suite 312                  tion departments' actual payments for mileage or
Lubbock, TX. 70401.3479                  monthly car allowances exceed the payments which
8061747.5238
                                         would be justified using the state mileage reim-
                                         bursement rate upon a determination by the Adult
4309 N. Tenth. Suite B                   Probation Commission that the actual payments did
McAllen, TX. 78501.1885                  exceed the state mileage reimbursement rate. In
5121682.4547                             viewing the mileage or car allowances paid by local
                                         probation departments and in making related adjust-
2M) Main Plaza. Suite 400                ments in, per capita aid, the Adult Probation Com-
San Antonio, TX. 78205-2797              mission ;'hall not consider mileage or car allow-
512/225.4191                             ances pr&ded    to individuals employed by probation
                                         departmeEts as of May 31, 1985. (Emphasis added).
An Equal Opportunity1
Affirmative Action Employer    General Appropriatfons Act, Acts 1985, 69th Leg., ch. 980, at 7452.

                                    The underlined language is, in effect, a grandfather clause. You
                               state that some local probation departments are interpreting that
                               clause as not applying to probation officers who were trainees on
                               May 31, 1985, and 410 have now become regular probation officers.

                                    Assuming this rider is valid, the clause in question applies to
                               -persons who were employees on May 31, 1985. It is not limited to




                                                          p. 1800
Honorable Oscar 8. Mauzy - Page 2   (JM-393)




persons who were probation officers on that date. Anyone who works
for a probation department. for compensation is an employee.       See
-western     National Life &surance Company v. Black, 383 S.W.Zd 806,
809, 810 (Tex. Civ. App. -?exarkana 1964, writ  reiETb n.r.e.1; Ackley
v. State, 592 S.W.Zd 606, 608 (Tex. Crim. App. 1980). Thus, if
trainees receive cosmensatlon from local Drobation deoartments, thev
are employees of such departments. The-grandfather- clause in the
rider set out above applies to anyone who was an employee of a local
probation department on May 31, 1985.

                              SUMMARY

             If the rider is valid, the grandfather clause
          in Rider No. 7 to the appropriation for the Texas
          Adult Probation commission in the General Appro-
          priations Act enacted by the Sixty-ninth Legisla-
          ture applies to anyone who was an employee of a
          local probation department on May 31, 1985.




                                        JIM     MATTOX
                                        Attorney General of Texas

JACKHIGHTOWBR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney %neral

RICK GILFIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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