                     April 24, 1958

Honorable A. C. Spencer
Executive Director
Texas State Soil Conservation Board
1112 First National Bank Building
Temple, Texas
                      Opinion No. WW-419
                      Re:   Authority of the State Soil Conser-
                            vation Board to compensate Field
                            Planning Engineers in an amount in
                            excess of the salary schedule of
                            other employees of the State Soil
Dear Mr. Spencer:           Conservation Board.
         You have requested our opinion on the following ques-
tion:
         "For the purpose of fulfilling the responsi-
    bilities delegated to the State Soil Conservation
    Board, in Section 3(b) of Senate Bill #l, Acts of
    the Fifty-fifth Legislature, First Called Session,
    may the State Soil Conservation Board pay from un-
    expended balances for the current biennium (Sept.
    1, 1957 - Aug. 31, 1959) an engineers salary that
    is in excess of salaries paid to other employees
    of the State Soil Conservation Board?"
          Your request for an opinion has been supplemented by
the following information:
         'IThetwo Field Planning Engineers presently
    employed by the State Soil Conservation Board are
    not engineers. They are graduates in the field of
    Agriculture and work with boards of supervisors of
    soil conservation districts in planning programs
    to apply such practices as range management, cover
    cropping and residue management. They also assist
    local districts in organizing local people as well
    as state and federal agencies in carrying out the
    districts program. This position is in no way simi-
    lar or comparable to the engineer employed to help
    develop a Master Plan for Upstream Flood Prevention
    for Texas.
Honorable A. C. Spencer, page 2   (WW-419)


          "The employee whose salary is in question iS
     a graduate engineer with 17 years experience in
     planning and constructing upstream flood preven-
     tion structures."
          The pertinent provisions of House Bill 133, Acts of
the Fifty-fifth Legislature, Chapter 385 (General Appropriation
Act), contain the following appropriation to the Soil Conserva-
tion Board:
                "Out of General Revenue Fund:
                "For Salaries, Wages and Per Diem---
     "1.  Board Members, Per Diem ..*... $ 2,500       $   2,500
          Executive Director *.0..o.DaOe   7,200            7,200
      32: Field Planning Engineers,
            NTE $6,300 .0.0*0.0......... 12,600            12,600,
      4. Executive Assistant *...**.0..    5,400            5,400
      5. Secretary .OeO*OeO.e..O.......    39;g            3,;g
      6.  Seasonal and Part-time Help 0a

           "Total! Salaries, Wages and
            Per Diem oee..oae.e.o.aao.a. $I32,070      $ 32;070
           I,. 0 e

          "Any unexpended balances in the reappropria-
     tions authorized by the Fifty-fourth Legislature,
     of funds and properties to the Soil Conservation
     Districts, are hereby reappropriated for the bi-
     ennium beginning September 1, 1957, for the pur-
     poses provided for under the Soil Conservation
     Statutes."
          Section 3(a) and a portion of Section 3(b) of Chap-
ter 11, Acts of the Fifty-fifth Legislature, First Called
Session (Water Planning Act of 1957), provides as follows:
          "Sete 3 (a). The Planning Division shall be
     under the supervision and direction of the State
     Board of Water Engineers, and its functions shall
     be:


          "(4)  To enter into contracts with federal,
     state and local political subdivisions and agen-
     cies including the State Soil Conservation Board
Honorable A. C. Spencer, page 3   (ww-419)


     and any other persons, firm or corporation for
     topographic mapping, joint investigation and
     research in the field of water and soil re-
     source planning.
          "Sec. 3(b). . . .
          "The State Soil Conservation Board is au-
     thorized to appoint a representative to advise
     and work with the Planning Division; the State
     Soil Conservation Board is hereby authorized to
     use any funds heretofore appropriated for use
     during the current biennium ending August 31,
     1959, for the purpose of paying the salary,
     travel expenses and other expenses of the rep-
     resentatives appointed by the Soil Conservation
     Board."
          Under the Water Planning Act of 1957, the Planning
Division of the State Board of Water Engineers is authorized
to enter into contracts with the State Soil Conservation
Board for topographic mapping, joint investigation and re-
search in the field of water and soil resource planning, and
the State Soil Conservation Board is specifically authorized
to,expend funds appropriated by the current biennium Appro-
priation Act for the purpose of paying salaries, travel ex-
penses and other expenses of the representatives appointed by
the State Soil Conservation Board.
          Items one through six of the appropriation to the
Soil Conservation Board are made for the purposes of paying
salaries while the remaining items are appropriated for the
payment of other expenses. The previous unexpended balance
is likewise appropriated to the Soil Conservation Board as a
lump sum. Therefore, it is our opinion that the previous
unexpended balance appropriated to the Soil Conservation Board
as a lump sum may be expended for the purpose of paying sala-
ries, travel expense and other expenses of the representatives
of the Soil Conservation Board.
          Section 8 of Article VI of the General Appropriation
Act limits the compensation that may be paid employees, pro-
viding:
          "Limitations on use of Other Expense funds
     for paying salaries and wages. None of the funds
     appropriated in Article I, II, and III of this act
     in items designated for travel expense, other
     operating expense, for capital outlay or equipment,
Honorable A. C. Spencer, page 4   (ww-419)


     or for maintenance, miscellaneous and contin-
     gent expenses, may be used for paying any
     salaries and wages unless the language of those
     items explicitly authorizes such use0
          "In those instances where the language
     of such items does explicitly authorize the use
     of such funds for paying salaries and wages,
     such employees shall not be paid a larger amount
     than that provided in ther?gular appropriated
     salary items for similar positions in such agency
     of the State. In the event there are no similar
     positions within such agency, then such employ-
     ees shall not be paid a larger amount than that
     provided for similar work or positions elsewhere
     in the State Government. In the event common
     laborers, skilled laborers, and mechanics cannot
     be obtained at the salary rates indicated in
     this paragraph, then the head of such agency of
     the State may pay for temporary employment only
     at rates not exceeding the prevailing wage scale
     paid in the locality where temporary service is
     to be rendered,"
          In view of the provisions above quoted, the salaries
that may be paid from the lump sum appropriation are limited
to (1) that provided in the regular appropriated salary items
for similar positions in such agency of the State and (2) that
provided for similar positions elsewhere in the SEate govern-
ment.
          According to your request, the first limitation is in-
applicable for the reason that no similar position exists with-
in the Soil Conservation Board, and you state that the position
is comparable to the positions set out in Items 5, 8, 9, 14,
21 and 22 of Section IV of Senate Bill I, Acts of the 55th Leg-
islature, First Called Session, Chapter 11, page 23 (Water
Planning Act of 1957).   The limitations contained in these items
are $9,000 and $8,600 per annum, depending on the particular
position. It is, therefore, our opinion that you are authorized
to set the salary of the representatives appointed by the Soil
Conservation Board , pursuant to the Water Planning Act of 1957,
at any sum not to exceed $9,000 or $8,600 per annum, whichever
is comparable.
Honorable A, C, Spencer, page 5   W-419)


                            SUMMARY

           The Soil Conservation Board is authorized to
      pswthe salaries of representatives appointed by
      the 5oil Conservation Board, pursuant to the
      Water Planning Act of 1957, at any sum not to
      exceed the salaries authorized by the Water
      Planning Act of 1957 for similar positions.
                               Yours very truly,
                               WILL WILSON
                               Attorney General of Texas




JR:pf:wb
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
B. H. Timmins, Jr0
Mary K, Wall
W. E. Allen
REVIEWED FOR THE ATTORNEY GENERAL
BY:     W, V, Geppert,
