                                                The Attorney         General of Texas
                                                                   November 10, 1983
   JIM MATTOX
   Attorney General


                                              Gary E. Miller, M.D.                         Opinion No. ~~-94
   Supreme   Court Building
   P 0. BOX 12548
                                              COSlQliSSiO~S~
   Austin. TX. 7*71t-  2546                   Texas Department of Mental                   Re:   Salaries for persons
   5121475-2501                                  Health and Mental Retardation             discharging   duties    of
   T&x 910/674-t367                           P. 0. Box 12668                              positions   as    "acting"
   Telecopier          5121475.0266
                                              Austin, Texas   78711                        holders thereof

   714 Jackson,  Suite 700
   Dallas. TX. 75202-4506                     Dear Dr. Miller:
   2141742-8944
                                                   You have asked about the salary to be paid someone who discharges
   4024 Alberta          Ave.. Suite    160
                                              the duties of an office or position as an "acting" functionary rather
   El Paso,      TX.     79905.2793           than as the duly appointed incumbent thereof.
   9151533-3464
                                                   The salaries for most employees and officers of the state of
                                              Texas are fixed by the biennial appropriations act in conjunction with
r‘?l       Texas,    Suite 700
       .uston,    TX. 77002.3111
                                              article 6252-11, V.T.C.S., the Position Classification Act of 1961, as
   7131223-5866                               authorized by article 6813b. V.T.C.S.

                                                    Section 2 of the Position Classification Act specifies:
   806 Broadway,            Suite 312
   Lubbock.  TX.          79401.3479
                                                          All regular, full-time salaried employments within
   6061747.5236
                                                          rcertain agencies and departments appropriated
                                                          money by the general appropriations act] shall
   4309 N. Tenth. Suite B                                 conform   with    the   Position    Classification
   McAtlen. TX. 7B501.1SB5                                Plan . . . and with      the salary rates and
   5121662-4547
                                                          provisions of the applicable Appropriations Act
                                                          commencing with the effective date of this Act,
   200 Main      Plaza. Suite 400                         with the exceptions and deferments hereafter
   San    Antonio.    TX. 78205.2797                      provided . . . . (Emphasis added).
   5121225.4191

                                                   However, one who serves in an "acting" capacity, by definition,
   An Equal       Opportunity/                is not engaged in a regular employment. He performs the duties of an
   Affirmative      Action     Employer       office or position to which he does not himself claim title. See
                                              State Bank of Williams V. Gish, 149 N.W. 600 (Iowa 1914); State ex rel
                                              Gossett V. O'Grady, 291 N.W. 497 (Neb. 1940). The term connotes a
                                              temporary designation, rank or position. See Pellecchia v. Mattia. 1
                                              A.Zd 28 (N.J. 1938); Capibianco V. Civil Service Commission, 158 A.Zd
                                              834 (N.J. Super. 1960). Thus, the salary paid one serving in an
                                              "acting capacity" need not conform to the Position Classification Plan
                                              unless some statute other than    article 6252-11 requires it.     SIX?
                                              Attorney General Letter Advisory No. 1 (1973). -Cf. Attorney General
                                              Opinion W-1317 (1962).


                                                                         p. 400
Dr. Gary E. Miller - Page 2   (JM-94)




     Article 6813b, V.T.C.S., does not expressly refer to the Position
Classification Plan, but it does specify that

         all salaries of all State officers and State
         employees, including the salaries paid any
         individual out of the General Revenue Fund, shall
         be in such sums or amounts as may be provided for
         by the Legislature in the biennial Appropriations
         Act.

The current general appropriations act does not speak directly of
salaries to be paid parsons temporarily discharging responsibilities
in an uactingu capacity. It does state, however, that a "promoted"
employee is to receive an increased salary, Acts 1983, 68th Leg., ch.
1095, art. V, §le, at 6196, and states that any classified employee
may, during emergencies or other special circumstances, be temporarily
assigned to other duties for periods not to exceed three months. Id.,
art. V. §lk, at 6197.

     The appropriations act defines a promotion as a change in duty
assignment within an agency from a position in one classification to a
position <n another classification in a higher salary group requiring
higher qualifications "such as a greater skill or longer experience,
and involving a higher level of responsibility." &,    art. V, §le. A
change in duty assignment, though only temporary, can come within the
definition of a "promotion." If it does, the appropriations act
provision specifies the amount that can be paid the promoted employee.
Id.. art. V, Ole.

     Situations in which classified employees are temporarily assigned
the duties of exenpt (non-classified) positions, or where non-
classified employees temporarily assume the responsibilities of other
non-classified positions, are not embraced by          the foregoing
"promotion" definition. The general appropriations act deals with the
salaries of non-classified employees in two ways: (1) either as line
item appropriations for which a specific amount is indicated, or (2)
as general positions for which the salary is "not to exceed" a
specified amount. In neither case (except with respect to certain law
enforcement positions) is a department required to pay the maximum
amount specified. Id., art. V, §§Za, 2b at 6199-6200. See generally
.AttorneyGeneral Opinion M-1227 (1972).

     It  is our  opinion that agency heads have broad discretion
concerning the salaries to be paid the occupants of such positions,
whether permanent or "acting," and that no definitive answer to your
question can be given with respect to them. The only certainty is
that the persons serving in an "acting" capacity may not be paid more
than the legislature designates as the maximum for the position
filled.
                                                                         ?



                                p. 401
Dr. Gary E. Miller - Page 3        (JM-94)




     The appropriations act provision may be illustrative of a general
policy that persons temporarily promoted ought to be compensated on
the scale ordinarily applied to the duties they temporarily discharge,
cf. Tex. Const., art. IV, 916 (lieutenant governor temporarily serving
as governor), but there is no law of which we are aware that requires
it for non-classified positions in state government.

                               -SUMMARY
             Persons in classified positions temporarily
          promoted to discharge the duties of another
          classified position as an "acting" functionary are
          entitled to a salary increase as specified in the
          general appropriations act. Persons who serve in
          an "acting" capacity with respect to positions
          exempt from the Position Classification Act may
          not be paid more than the maximum amount for the
          position specified in the appropriations act, but
          nay be paid less at the discretion of the agency
          head.




                                          J /bit
                                            Very truly yours



                                          -JIM
                                                 A
                                                    MATTOX
                                            Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood




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