          l%m     A~~J~RNEP            GENERAL
                       OFTEXAS




Honorable John C. White
Commissioner of Agriculture
Capitol Building
Austin 11, Texas
                                 Opinion No. WW-1317
                                 Re:   Whether an appointment to an
                                       unclassified seasonal position
                                       disqualifies such appointee
                                       for later appointment to a
                                       classified position at a rate
                                       of pay not to exceed the mid-
                                       point, provided he has "marked
Dear Mr. White:                        ly superior qualifications.”
          We are in receipt of your:request for opinion on the
above question.
          In regard to employees In your Department we quote from
your letter as follows:
         “Several appl,lcantshaving ‘superior quallfi-
    cations’ have been employed in seasonal positions.
    Some of these, after several months of duty In
    such positions, have been appointed to classified
    positions at salaries above the minimum because
    they not only have ‘superior qualifications’ but
    have demonstrated superior performance as well.
    We have considered these individuals ‘new employees’
    insofar as classified positions are concerned. In
    connection with our March payroll the Comptrollers’
    Office has questioned such appointments.
          “We respectfully request your    opinion on the
     following question:
          “Does appointment to an unclassified seasonal
     position disqualify an applicant for later appoint-
     ment to a classified position at a rate not to
     exceed the mid-point, proyided he has ‘markedly
     superior qualifications?’
          The Position Classification Act of 1961, codified as
Article 6252-11 of Vernon's Civil Statutes states in part as
follows:
Honorable John C. White, Page 2 (W-1317)


         "Sec. 2. All regular, full-time salaried emoloy-
    ments within the departments and agencies of the State
    specified In Article III . . . of the biennial Appro-
    priations Act shall conform with the Position Classi-
    fication Plan hereinafter described and with the salary
    rates and provisions of the applicable Appropriations
    Act commencing with the effective date of this Act &$&
    the exceptions antideferments hereafter wrovlded in
    this Section.
         II
          . . *
         "Specifically excepted from the Position Classi-
    fication Plan hereinafter described are . . . hourly
    employees, Dart-time, and temporary emnlovees; . . .'
    IEmphasis added)
          The above language Indicates to us that seasonal employ-
ees would not be considered regular or full-time salaried employ-
ees, but would be part time or temporary employees, and as such
were specifically excepted from the provisions of the Position
Classification Act of 1961.
          Subdivision B of Section 1 of Article III of Senate
Bill 1, Acts. 57th Leg., 1st C.S. 192 1, Ch. 62, p. 203 states In
part as follows at page 381:
          "B . Hiring policies. (1) New Employees.
     New employees will be started at the minimum salary
     of the range to which the position Is assigned; how-
     ever, the department head is authorized to employ
     below the prescribed minimum during the periods of
     training not to exceed six (6) months.
          "(2) Application of Mid-Point. If the aooli-
     cant has qualifications markedly superior to the
     minimum desired reaulrements of the position. the
     department head may set the salary of the position
     at not more than the mid-point of the assigned
     salary range. Notification of this action will be
     made to the Classification Officer. Consideration
     may be given to past experience of the employee in
     other state departments or agen$les in determinin
     the salary level of employment.   (Emphasis added7
          Since seasonal or temporary employees are not subject
to the Position Classification Act of 1961, it follows from the
above langiage that such employees are to be considered 'new
employees, if appointed to a classified position, and, if they
possess "markedly superior" qualifications, you may place their
Honorable John C. White, Page 3 (WW-1317)


salary at not more than the mid-point of their respective salary
ranges. The Comptroller of Public Accounts Is authorized to
issue warrants for their newly-designated salaries. Your ques-
tion propounded to us is therefore answered negatively.

                          SUMMARY
      Seasonal or temporary employees are not subject to
      the Position Classification Act of 1961, and there-
      fore may be considered new employees if appointed
      to a classified position. Such employees may be
      placed at not more than the mid-point of their
      salary range If they posses markedly superior quall-
      fications.
                                Yours very truly,
                                WILL WILSON
                                Attorney General of Texas


                                By:Fred D. Ward
                                     AssZstant
FDW:jkr
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
Arthur Sandlin
Joseph Trimble
Elmer McVey
REVIEWED FOR THE ATTORNEY GENERAL

By:   Houghton Brownlee, Jr.
