 .




                                            The Attorney         General of Texas

 JIM MATTOX                                                SeIltember19, 1986
 Attorney General



 Supreme      Court Building               Honorable Oscar H. Mauzy              Opinion No. ~~-548
 P. 0. BOX 12546
 Austin,    TX. 76711. 2546
                                           Chairman
 51214752501
                                           Committee on Jurisprudence            lb?: Whether the Texas Department
 Telex    9101674-1367                     Texas State Senate                    of Corrections may require com-
 Telecopier     5121475.0266               P. 0. Box 12068                       pletion of one year of service
                                           Austin, Texas   78711                 before awarding hazardous duty pay
 714 Jackson.  Suite 700
 Oatlas, TX. 75202.4506                    Dear Senator Mauzy:
 2141742.6944
                                                You have asked our opinion in regard to the validity of the Texas
                                           Department of Corrections' policy of requiring its employees to
 4624      Alberta   Ave.,   Suite   160
 El Paso, TX.        79905.2793
                                           complete one year of employment before they may become eligible to
 9151533-3464                              receive hazardous duty pay. Article 6252-20b, V.T.C.S., provides:

                                                        All commissioned law enforcement personnel of
/1401       Texas, Suite 700                         the Department of Public Safety, all commissioned
         rston, TX. 77002-3111
                                                     law enforcement personnel of the State Purchasing
  I 031223.5666
                                                     and General Services Commission, all commissioned
                                                     security officers of the State Treasury, all com-
 606 Broadway,          Suite 312                    missioned law enforcement personnel of the Texas
 Lubbock,     TX.     79401.3479                     Alcoholic :BeverageCommission, all law enforcement
 6061747-5236
                                                     officers .commissioned by the Texas Parks and
                                                     Wildlife commission, all      commissioned peace
 4309 N. Tenth,     Suite B                          officers of state institutions of hieher educa-
 McAllen,     TX. 76501-1665                         tion, antl all law enforcement personnel commis-
 612,662.4547                                       -sionedF-the Texas Department of Corrections, and
                                                     all emplo@es or officials of the Board of Pardons
 200 Main Plaza, Suite 400                           and Paroles who have routine direct contact with
 San Antonio,  TX. 76205.2797                        inmates cf any penal or correctional institution
 512/225-4191                                        or with     administratively released Drisoners

 An Equal        Opportunity/
 Affirmative       Action     Employer




                                                     of existing hazardous      duty   or   longevity pay.
                                                     (Emphasis iadded).

                                           You have only asked {aboutthe construction of this act from the period
                                           beginning September 1, 1983 to the present. The General Appropria-
 ,----
                                           tions Act for the biennium beginning September 1, 1983, provides:



                                                                     p. 2426
Honorable Oscar H. Mauzy - :?age2   (JM-548)




            27. . . . tha! Department of ,Corrections is
         authorized to pay hazardous duty pay at a rate of
         Seven Dollars ($7.00) per month for each year of
         State service up to and including the 30th year
         for the following classifications: Warden II,
         Warden I, Assistant Warden, Major of Correctional
         Officers, Captain     of  Correctional Officers,
         Lieutenant of Ccxrectional Officers, Sergeant of
         Correctional OffJcers, Correctional Officer III,
         Correctional OffJ.cer II and Correctional Officer
         I. Employees in other classifications who work
         within the prisor,compound or whose work requires
         daily contact r.ith inmates may also receive
         hazardous duty pay; however, the total number of
         employees in other classifications eligible to
         receive hazardous; duty pay shall not exceed 500
         non-unit employe=s. A list of such employees
         shall be filed annually with the Governor's Office
         of Management and Budget and the Legislative
         Budget Board. (Emphasis added).

Acts 1983, 68th Leg., ch. 1095, at 5794. The General Appropriations
Act for the biennium beginning September 1, 1985, provides in part:

          The Department of Corrections is authorized to nav




         A. All persons t,lassifiedas Correctional Officer
         I through Warden. . . . (Emphasis added).

Acts 1985, 69th Leg., ch. %O,   at 7353.

     You have informed us that TDC policy states that, when a new
correctional officer is eq?loyed, the new employee is classified as a
Correctional Officer I for a one-month training period, and then as a
Correctional Officer II for a six-month probationary period, and then
as a Correctional Officer III. However, under the TDC hazardous duty
policy, no correctional o!ificers are granted hazardous duty pay for
the first five months of occupying these positions. The issue is,
therefore, whether the phrase "for each year of state service" as used
in article 6252-20b, and the Appropriations Act require that a
correctional officer &ete      one year of employment with TDC before
the employee is entitled tohazardous     duty pay. For the following
reasons, we conclude that article 6252-20b, V.T.C.S., which authorizes
TDC to require its employet?sto complete one year of employment before
they may become eligible te)receive hazardous duty pay; is valid.




                                p. 2427
Honorable Oscar H. Mauzy - :?age3   (JM-548)




     The TDC is an admixtstrative agency       of the state and is
authorized to promulgate riles and regulations which are not incon-
sistent with its enabling act and other state statutes. See V.T.C.S.
art. 6166a et. seq. (enabling act); V.T.C.S. art. 6252xa,        93(l)
(definition of state agency); Stanfield v. Texas Department of Public
Safety, 422 S.W.2d 14 (TEx. Civ. App. - Dallas 1967, writ ref'd
n.r.e.). Article 6252-2Ob, V.T.C.S., specifically authorizes TDC to
award hazardous duty pay tl)"all law enforcement personnel" entitled
to receive it. However, these law enforcement officials must also
meet the required statutory time of service with the department.

     It is our opinion tha: the legislature's use of the words "for
each year of state service" is unambiguous and its meaning is clear
and obvious. Wall V. Wall, 172 S.W.2d 181 (Tex. Civ. App. - Amarillo
1943, writ ref'd w.o.m.1. The legislature specified the minimum
amount of time, one year, ::nwhich an employee must serve before the
benefit may be awarded. Wz are not at liberty to enlarge or modify
this time period. The enployee must have completed one year of
service before he can be awsrded these benefits.

     Moreover, this office has consistently held that when the length
of service is used to establish state employee benefit entitlements in
state statutes and approgtriations acts, the specified amount of
service means the completion of the period of time specified. See
Attorney General Opinions IfiJ-282(1980); H-341 (1974); M-984 (1971).
Accordingly, TDC is authorkzed to require its employees to complete
one year of employment beEore they may become eligible to receive
hazardous duty pay.

                             SUMMARY

             Article 6252-2X,, V.T.C.S., authorizes the Texas
          Department of Corrections to require its employees
          to complete one )'ear of employment before they may
          become eligible t3 receive hazardous duty pay.




                                       L-l-b
                                         Very truly your ,
                                                .


                                         JIM     MATTOX
                                         Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General




                               p. 2428
Honorable Oscar H. Mauzy - Iage 4   (JM-548)




RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General




                               p. 2429
