             THE   ATTORNEY              GENERAL
                       OF     TEXAS




Herbert C. Wilson                           Opinion No. M- 888
Deputy Commissioner
State Department of Public Welfare          Re:    Compensation for
                                                   hourly employees.
R. L. Coffman
Administrator
Texas Employment Commission

David Wade, M. D.
Commissioner
Texas 'Departmentof Mental~Health
  and Mental Retardation

Gentlemen:

           Your joint request for an opinion reads as follows:

         "This is the official request of the State
    Department of Public Welfare, the Texas Employment
    Commission and the Texas Department of Mental Health
    and Mental Retardation hor a clarification of Opinion
    No. M-850 dated May 5.~1971.

          "Since the above Opinion was issued a question
     has arisen with regard to the authority of these
     three (3) agencies to pay a supplemental payroll
     out of the appropriations made to the 'respective
     agencies in the Appropriations Act. The payrolls
     in question are in payment of wages to hourly
     employees computed on an hourly basis.

          "House Bill No. 2, Acts of the 61st Legislature,
     Second Called Session, 1969, the General Appropriations
     Act for the biennium ending August 31, 1971, makes a
     specific lump sum appropriation to the Department of
     Public Welfare for 'seasonal help' (Article III, Page
     169, Item 14).
                                -4326-
Herbert C. Wilson, page 2               (M-888)
R. L. Coffman. David Wade, M. D.

         "House Bill No. 2, Acts of the 61st Legislature,
    Second Called Session, 1969, the General Appropriations
    Act for the biennium ending August 31, 1971, makes a
    specific lump sum appropriation to the Texas Employ-
    ment Commission for 'salaries of classified positions,
    professional fees and services, part-time and seasonal
    help, merit salary increases' (Article III, Page 64,
     Item   ~9).

          "House Bill No. 2, Acts of the 61st Legislature,
    Second Called Session, 1969, the General Appropriations
    Act for the biennium ending August 31, 1971, makes
    specific lump sum appropriations to the various ad-
    ministrative divisions and to the facilities and in-
    stitutions under the jurisdiction and control of the
    Texas Department of Mental Health and Mental Retarda-
    tion for salaries of classified positions. Article II,
    Section 2, Paragraph d, Page 37, of the current Appro-
    priations Act provides as follows:

               '1t':isfurther pr~wided that appropriations
            for salaries of classified positions may be
            used to pay the wages of hourly workers when
            the utilization of such personnel is in the
            best interest of an economical and efficient
            program.'

            "Your opinion No.   M-850   states    that:

                   I
                 . . . where the Legislature has made a
            specific lump sum appropriation for hourly
            wages without placixqlimitations on the
            rate of pay to be paid hourly employees, then
            the head of the agency to whom the appropriation
            is made has the sole discretion to fix the
            hourly rate of pay for such employees . . .'

          "Cur respective agencies have for many years in-
     terpreted the specific appropriations cited above as
     authority to hire and pay employees on an hourly basis


                                   -4327-
Herbert C. Wilson, page 3        (M-888)
R. L. Coffman. David Wade, M. D.


    at a rate determined at the discretion of the agency.
    We believe this is in keeping with the case of Humble
    Oil and Refining Co. v. Calvert, 414 S.W.Zd 172,
    which points out that where there is any ambiguity
    in a statute the ,courtswill look with favor upon the
    longstanding construction by a State agency of an
    ambiguous phrase.

         "On the basis of your Opinion No. H-850, the
    State Comptroller has questioned this interpretation.

         "With respect to each of the agencies requesting
    this Opinion, do the above quoted lump sum appropria-
    tions authorize our respective agencies to hire and
    pay hourly employees from such appropriations and to
    fix the hourly rate of pay for employees hired on an
    hourly basis?

          *This joint request for an opinion is submitted
    in lieu of the request dated June 15, 1971, submitted
    .by the State Department of Public Welfare."

          In Attorney General's Opinion No. M-850 it was held:

          "Furthermore, in answer to your third and fourth
     questions, where the Legislature has made a specific
     lump sum ,appropriationfor hourly wages without placing
     limitations 'onthe rate of pay to be paid hourly em-
     ployees, then ,thehead of the agency to whom the appro-
     priation is made has the sole discretion to fix the
     hourly rate of pay for such employees. See for example,
     Item 24 of the appropriation to the Highway Department
     in the current General Appropriations Act (House Bill 2,
     Acts 61st Leg. 2nd C.S., 1969, at p. 770 ~of the Session
     Laws).

          *Summarizing the foregoing it is our opinion
     that the only limitations placed on an employee's
     salary by the Legislature are the annual salary
     appropriated by the Legislature and the monthly
     salary to be paid in twelve equal installments."

                             -4328-
Herbert C. Wilson, page~4        (M-888)                   .~.
R. L. Coffman, David Wade, M. D.


               It is further.pointed outin.Attorney General's Opinion
No;   ~-850:          .~

            "The ~courts will ordinarily~.adoptand uphold
       departmentalconstruction by agencies charged with
       the responsibility ,forthe administration of a par-
       ticular statute , land such construction will not be
       overturned unless the construction is unreasonable
       or clearly wrong. 53 +Tex.Jur.Zd 259, Statutes Sec.
       177; Humble Oil and Refining Co. v. ~Calvert, 414
       S.W.,2d,l72 (Tex.Sup. 1967). This is particularly
       true in those'instances where ,statutoryprovisions
      shave been reenacted.without material change. The
      'Legislature is presumed tohave~known of such con-
       struction and ~practice and.acquieeced in:ft by its
       failure to amend or change it. ~Burroushs v. Lvles,
       142 Tex. 704, 181 S.W.Zd 570 (1944)."

          In the instant case y'our'respectiveagencies have for
many years interpreted the specificappropriations cited in your
request as authority to hire employees wn~.an hourly-basis and to
fix the hourly rate of pay for such employees. The Legislature
has acquiesced in such~departmental construction..

          You are accordingly advised,&hat .such construction is
in conformance with Attorney General's Opinion ~-850. supra, and
each of the lump sum appropriations ,referred to in .your request
authorizes the head of the respective agencies to.hire hourly
employees. Furthermore, the head ~ofeach agency to whom the
appropriation is made has the, sole.discretion tofix the hourly
fate of pay for such.employees. .         ~. ':   ~.:~

                             S UMMARY

            Where the Legislature has made specific lump
       sum appropriations for hourly wages the head of the
       agency to whom the appropriation.is made has the
       sole discretion to fix the hourly rate of pay of-
       such employee. Attorney General'e Opinion M-850
       (1971).


                                  -4329 -
,*




     Herbert C. Wilson, page 5              (M-888)
     R. L. Coffman, David Wade,   M.   D.


               Such specific lump sum appropriations for
          hourly wages have been made to the State Department
          of Public Welfare, the Texas Employment Commission,
          and the Texas Department of Mental Health and Mental
          Retardation.

                                       Y        very truly,



                                                  C. MARTIN


     Prepared by John Reeves
     Assistant Attorney General

     APPROVED:
     OPINION COMMITTEE

     Kerns,Taylor, Chairman
     W. E. Allen, Co-Chairman
     Glenn Brown
     Houghton Brownlee
     Pat Bailey
     Fisher Tyler

     MEADE F. GRIFFIN
     Staff Legal Assistant'

     ALFREDWALKBR
     Executive Assistant

     NOLA WHITE
     First Assistant




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