Honorable David Wade, M.D.                Opinion NO. M- 1155
Commissioner, Texas Department of
  Mental Health and Mental Retardation    Re:   Authority, if any,
P. 0. Box 12668, Capitol Station                of Texas Department
Austin, Texas  78711                            of Mental Health and
                                                Mental Retardation
                                                to make payment in
                                                cash to its employees
                                                who are subject to
                                                the federal Fair
                                                Labor Standards Act
                                                for authorized over-
                                                time, and related
Dear Dr. Wade:                                  questions.

          In your recent request for an opinion of this office,
you submitted the following questions:

           "1. Is the Texas Department of Mental Health
     and Mental Retardation authorized to make payment
     in cash to its employees who are subject to the
     provisions of the Fair Labor Standards Act for
     authorized overtime?

            "2 . Is the Texas Department of Mental Health
      and Mental Retardation authorized to make payment
      in cash to the appropriate person for authorized
      overtime properly accrued to an employee at the
      time of his death or separation from employment
      with this Department?

           "3 . If the answer to the aforesaid questions
      is in the affirmative, then from what appropriated
      funds may such cash payments be made?"



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Honorable David Wade, M.D., page 2,       (M-1155)



          Your first question   is answered in the affirmative.

          Article III, Section 44 of the Texas Constitution     pro-
vides, in part, that

           "The Legislature shall . . . /InotJ grant,    by
     appropriation or otherwise, any amount of money    out
     of the Treasury of the State, to any individual,    on
     a claim, real or pretended, when the same shall    not
     have been provided for by pre-existing law."

          Pre-existing law for the payment of base salary plus
overtime for your employees covered by the provisions of the
Fair Labor Standards Act is supplied by the 1966 amendments to
that Act. See Attorney General's Opinion No. M-341 (1969).

           The authority for paying overtime in cash is provided
in Article V, Section 2, Subdivision d, of the current General
Appropriations Act (S.B. 11, Acts 62nd Leg., R.S. 1971, as
amended by S.B. 7, 62nd Leg., 1st C.S., 1971, P. V-32, 3793).
Subdivision d reads, in part, as follows:

          II. . . . Provided, however, that any agency   or
     institution, subject to the Fair Labor Standards    Act,
     as amended, is authorized to reimburse employees    for
     all authorized overtime by granting compensatory    time
     as specified above or by paying money from funds
     appropriated by this Act at the rate of 1% times    the
     regular rate for the overtime performed."

          Your second question is answered in the affirmative.
The authority to make payment in cash is set out in our answer
to your question No. 1. Your question asks whether you have
authority to include payment for authorized overtime properly
accrued at the time of death or separation of the employee
from employment with the department.

          Overtime pay is not a separable stipend.  It is part
and parcel of the compensation called for in the employee's



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    Honorable   David Wade, M.D., Page 31     (M-1155)



    contract, and is properly payable, if accrued, at the time the
    base pay is paid. The employee has a vested right in overtime
    pay the moment it accrues under his contract of employment.

              Your third question brings into consideration Sec-
    tion 6 of Article VIII of the Texas Constitution.   That section
    provides that no money shall be drawn from the Treasury but in
    pursuance of specific appropriation made by law.

              In our opinion the necessary specific appropriation
    for overtime pay is provided by the same appropriation that
    provides for regular pay of the employee.  The designation
    given this sum will no doubt vary from institution to institu-
    tion. Each employee's warrant, including his overtime, should
    be charged to that fund.

              See National Biscuit Co. v. State, 135 S.W.2d 687,
    page 693 (Tex.Sup. 1940). wherein it was said:

                "As just stated, one of the provisions of
          Section 6 of Article 8 of our Constitution re-
          quires all appropriations of money out of the
          State Treasury to be specific.   It is settled
          that no particular form of words is required :o
          render an appropriation specific within the
          meaning of the constitutional provision under
          discussion.   It is sufficient if the Legislature
          authorizes the expenditure by law, and specifies
          the purpose for which the appropriation is
          made. . . ."

              Conceivably an institution which had not planned
    on paying in cash for overtime might run low on funds in the
    item to which salary and bvertime are charged.  There is some
    measure of relief in Article II, Section 15, Subdivision c,
    of the Current General Appropriation Act (S.B. 11, Acts of
    62nd Leg., R.S. 1971, as amended by S.B. 7, 62nd Leg., 1st
    C.S. 1971, P. 11-48, 3489), which reads as follows:



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                 Honorable    David Wade, M.D., page 4,    (M-1155)



                           “C . It is the intent of the Legislature that
                      the appropriations made herein to the Department
                      of Mental Health and Mental Retardation and to
                      institutions and agencies under its jurisdiction
                      shall be expended as nearly as practicable for the
                      purposes specified; however, upon a finding by the
                      Board of Mental Health and Mental Retardation that
                      any funds in excess of the needs for which they
                      were appropriated could be used more efficiently
                      and effectively for other purposes for which
                      appropriations have been made, said Board is hereby
                      authorized to transfer any such excess from one
                      item of appropriation to another.

                           "It is provided, however, that no such trans-
                      fer shall be made from appropriations for salaries
                      of classified positions."

                                            SUMMARY
                                            -------

                           The Texas Department of Mental Health and
                      Mental Retardation is authorized to make payment
                      in cash to its employees who are subject to the
                      provisions of the Fair Labor Standards Act for
                      authorized overtime.

                           The Texas Department of Mental Health and
                      Mental Retardation is authorized to make payment
                      in cash to the appropriate person for authorized
                      overtime properly accrued to an employee at the
                      time of his death or separation from employment
                      with this Department.

                            Payment of overtime shall be made from the
                       same fund or account to which appropriation is
 i’                    made for payment of the employee's base pay.
 i :’




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Honorable   David Wade, M.D., page 5,           (M-1155)



                                            truly yours,




                                             ey General of Texas

Prepared by James S. Swearingen
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

John Reeves
Michael Stork
S. J. Aronson
Robert Lemens

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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