   OFFICE   OF THE ATTORNEY   GENERXL   . STATE OF TEXAS

   JOHN     CORNYN




                                                January 28,2002



Mr. Jerry L. Benedict                                   Opinion No. JC-0456
Administrative Director
Office of Court Administration                          Re: Whether the state employee pay raise effective
P.O. Box 12066                                          September 1, 2001 applies to appellate court
Austin, Texas 7871 l-2066                               briefing attorneys and law clerks (RQ-0428-JC)


Dear Mr. Benedict:

        You ask whether a provision of the 2001 General Appropriations Act that grants an across-
the-board pay raise to state employees applies to briefing attorneys and law clerks with the appellate
courts.’ Briefing attorneys and law clerks with the appellate courts are entitled to the four percent
salary increase authorized by section 10.12 of article IX, General Appropriations Act if they meet
the length-of-service requirements stated in section 10.12(i) of article IX.

        You ask whether the briefing attorneys and law clerks of the state’s appellate courts are to
receive the four percent increase in annual salary for employees of state agencies provided by section
10.12, article IX, of the current General Appropriations Act. This section provides in part:

                  Sec. 10.12. Appropriation         for a Salary Increase.

                  (a) As used in this section, ‘salary increase’ shall mean a 4% increase
                      in annual salary with a minimum of $100 per month increase in
                      salary.

                  (b) The Comptroller of Public Accounts is hereby appropriated an
                      amount estimated to be $169,036,47 1 out of the General Revenue
                      Fund, an amount estimated to be $22,682,459 out of General
                      Revenue     - Dedicated,    and an amount estimated          to be
                      $13 1,5 10,143 out of other funds and accounts to fund a salary
                      increase described in Subsection (a) of this Section for employees
                      of state agencies, including employees of the Higher Education




         ‘Letter from Mr. Jerry L. Benedict, Administrative Director, Office of Court Administration,   to Honorable
John Cornyn, Texas Attorney General (Sept. 7,200l) (on file with Opinion Committee).
Mr. Jerry L. Benedict        - Page 2                   (JC-0456)




                         Coordinating Board, as such a salary increase is reflected in the
                         salary rates authorized elsewhere in this Act.*

                     (c) Non-faculty    Employees      at Institutions   of Higher Education.




                     (d) This section shall not apply to statewide elected officials, justices
                         and judges of the appellate and district courts, district attorneys,
                         criminal district attorneys, county attorneys performing the duties
                         of a district attorney, or the compensatory per diem of board or
                         commission members.




                     (g) The Comptroller of Public Accounts shall promulgate rules and
                         regulations as necessary to administer this section. . . .

                     (h) This section does not authorize an increase of classified salary
                         rates or exempt salary rates above the rates listed in the applicable
                         schedule in this Act.

                     (i) In order to receive the salary increase described in Subsection (a)
                         of this Section, any employee must meet the following
                         requirements:

                         (1) An employee employed by the state for at least twelve (12)
                             continuous months prior to September 1,200l is eligible for
                             the salary increase on September 1,200l.

                         (2) An employee who is not employed for twelve continuous
                             months prior to September 1, 2001, and who begins work
                             with the state prior to March 1’2002 is eligible for the salary
                             increase on September 1,2002.

                         (3) An employee who begins work with the state between
                             March 1’2002 and August 3 1’2002 is eligible for the salary
                             increase on March 1,2003.




          *See General Appropriations    Act, 77th Leg., R.S., S.B. 1, art. IX, 9 2.01, at IX-l-27 (2001), available at
http://www.lbb.state.tx.us (setting out two salary rates for each salary group, one for employees ineligible for the salary
increase beginning    September   1 and one for employees   who are eligible for the salary increase).
Mr. Jerry L. Benedict   - Page 3                   (JC-0456)




                    (4) [relating to non-faculty    employees   of institutions   of higher
                        education] . . . .




                (k) Funds appropriated in this Section for the salary increase may not
                    be used to fund a salary increase for the following groups: . . .
                    [certain employees at the Texas Department of Criminal Justice
                    and at the Texas Youth Commission].

General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IX, 8 10.12, at 1X-76-78 (2001)’ available
at http://www.Ibb.state.tx.us (footnote added).

        The length of service requirements set out in section 10.12(i) are especially relevant to a
person holding a temporary position with the courts, such as a recent law school graduate who serves
as a law clerk from September 1 of one year to August 3 1 of the following year. A person currently
employed on this schedule would not be able to meet the length of service requirements and,
accordingly, would not receive the raise, regardless of whether he or she were otherwise qualified
for it. To be eligible for the salary increase on September 1, 2001, a state employee must have
been employed for at least twelve continuous months before that date, and to be eligible by
September 1,2002, an individual must have begun work with the state prior to March 1’2002. Id.
$5 10.12(i)(1)(2). A one-year term of employment that begins on September 1 will have ended by
the time the person qualifies under either provision.

         Section 10.12 appropriates funds to pay a four percent salary increase for state employees
with certain exceptions, none of which apply to appellate court briefing attorneys or law clerks. Its
provisions reflect statutes governing state employee compensation and refer to other sections of the
appropriations act. Particularly relevant to section 10.12 are the Position Classification Act (“Act”),
TEX. GOV’T CODE ANN. ch. 654 (Vernon 1994 & Supp. 2002)’ and part 2, article IX of the General
Appropriations Act, which includes provisions relating to the Position Classification Act. We will
review these provisions to provide a context for understanding section 10.12.

          The Position Classification Act is the most important provision governing state employees’
 compensation,     although it is not the only statute authorizing the legislature to provide for the
 compensation of state employees, including employees of the judiciary, in the appropriations act.
See id. $9 22.301 (Vernon 1988) (salaries of “the clerks, other officers, and employees of the
 supreme court, court of criminal appeals, and courts of appeals shall be determined by the legislature
 in its appropriation acts for the support of the judiciary”); 659.011 (Vernon 1994 & Supp. 2002)
 (“salaries of all state officers and employees are in the amounts provided by the biennial
 appropriations act”), 659.012 (providing for minimum salaries for justices of the supreme court,
justices and chief justices of the courts of appeals, and judges of district courts).
Mr. Jerry L. Benedict    - Page 4                 (JC-0456)




         The state position classification  plan (“plan”) established pursuant to the Position
Classification Act “provides the salary structure for specified state employments.” Id. § 654.002
(Vernon 1994). Government Code section 654.011 makes it clear that the position classification
plan applies to employments in the judiciary:

                     (a) The position classification plan and the salary rates and
                 provisions in the General Appropriations Act apply to all . . . salaried
                 employments in the state departments, agencies, or judicial entities
                 specified in the articles of the General Appropriations       Act that
                 appropriate money to:

                         (1) general government     agencies;

                         (2) health and human services agencies;

                          (3) the judiciary, except for judges,   district attorneys,   and
                 assistant district attorneys;

                          (4) public safety and criminal justice agencies; [other classes
                 of state agencies;]




                         (8) agencies of public education[ .]

Id. 5 654.01 l(a) (Vernon Supp. 2002).

           Section 654.012 of the Government Code states that the plan does not apply to certain
 officers and employees, including a constitutional officer, an elected officer, and an officer appointed
 by the governor. See id. 9 654.012 (Vernon Supp. 2002). Justices and judges of the state appellate
 courts and of district courts are elected to office or appointed to a vacancy by the governor. See TEX.
 CONST. art. V, $0 2 (Supreme Court Justices); 4 (Court of Criminal Appeals Judges); 6 (Justices of
 Courts of Appeals); 7 (district judges); 28 (governor fills vacancies in office of judge of state
 appellate courts and district courts); see also art. IV, 8 12 (vacancies in state or district offices to be
 filled by appointment of the governor). Thus, the salaries of such judges are not governed by the
position classification plan. Section 10.12 of article IX, General Appropriations Act, states that these
judges are ineligible for the salary increase that it provides. See General Appropriations Act, 77th
 Leg., R.S., S.B. 1, art. IX, 5 10.12(d), at IX-77 (2001)’ available at http:llwww.lbb.state.tx.us
 (section 10.12 does not apply to statewide elected officials, justices and judges of the appellate and
 district courts); see also TEX. GOV’T CODE ANN. 9 659.012 (Vernon Supp. 2002) (providing for
judicial salaries). However, employees of the judicial branch are not excepted from the state
 classification plan by any provision of Government Code chapter 654, nor does section 10.12 make
them ineligible for the pay increase it authorizes. CJ: General Appropriations Act, 77th Leg., R.S.,
Mr. Jerry L. Benedict     - Page 5                   (JC-0456)




S.B. 1, art. IX, 6 10.12(k), at IX-78 (2001), available at http://www.lbb.state.tx.us (exception for
certain employee groups of Texas Department of Criminal Justice and the Texas Youth
Commission).

          Section 10.12(b) refers to the appropriation act provisions that implement the state position
classification plan. These are found in article IX, part 2 of the General Appropriations Act, which
provides in its introductory section:

                 Except as otherwise specifically provided in this Act, expenditures of
                 appropriations for the salaries of employees, in classified positions in
                 all affected agencies appropriated funds by this Act [other than
                 certain entities related to education] . . . , are governed by Chapter
                 654, Government Code (the Position Classification Act), Chapter
                 659, Government Code, and this section, including the following lists
                 of position classification    numbers, position titles, salary group
                 allocations, and rates of pay in classification salary schedules as
                 provided by this Article.

See General Appropriations       Act, 77th Leg., R.S., S.B. 1, art. IX, 9 2.01, at IX-1 (2001), avdabk
at http://www.lbb.state.tx.us.

         The lists of classified employments in part 2 include positions in the judiciary: Appellate
Court Peace Officer, Court Law Clerk, Chief Deputy Clerk, and Clerk of the Court. Id. at IX- 14.
The list also includes employments classified as Attorney I through VI, id. at IX- 13-l 4, and
information submitted to us shows that persons in the “Attorney” classification are employed by the
appellate courts. 3 The appellate court briefing attorneys and law clerks you inquire about are within
the article IX, part 2 provisions relating to the position classification plan.

         The salary rate tables provide two salaries for each salary group-one       for employees not
eligible for the salary increase beginning September 1 and one for employees who are eligible for
the salary increase. See General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IX, 9 2.01, at IX-27
(2001), available at http:llwww.lbb.state.tx.us;    see also id. 9 10.12(i) at IX-78 (stating eligibility
requirements).    Thus, part 2 of article IX implements the four percent salary increase authorized
by section 10.12(a). Section 10.12(b) appropriates certain amounts of money to the comptroller “to
fund a salary increase described in Subsection (a) of this Section for employees of state
agencies . . . as such a salary increase is reflected in the salary rates authorized elsewhere in this
Act.” Id. 5 10.12(b) at IX-77 (emphasis added). Because briefing attorneys and law clerks with the


          3See Brief from Honorable Rodney Ellis, Honorable Rob Junell, Texas State Legislature, to Honorable John
Cornyn, Texas Attorney General (Oct. 17, 2001) (on file with Opinion Committee) [hereinafter Ellis-June11 brief];
Attachment A (Court Legal Staff Salary and Court Operation Increase: 2002-03); Attachment C (Legislative Budget
Board, Issue Docket, Conference Committee on Senate Bill 1, General Appropriations Bill, Article IV - The Judiciary
(4/19/2001) at 10) (on file with Opinion Committee).
Mr. Jerry L. Benedict          - Page 6                 (JC-0456)




appellate courts are included in the position classification lists and salary rate tables found in part
2 of article IX, General Appropriations Act, eligible employees in those positions are entitled to the
four percent salary increase authorized by section 10.12 of article IX, General Appropriations Act.
To be eligible, a particular briefing attorney or law clerk must, of course, have complied with the
continuous service requirement set out in section 10.12(i).

         A brief from the Chairman of the Senate Finance Committee and the Chairman of the House
Committee on Appropriations states, however, that the legislature did not intend the four percent
state employee pay raise to apply to appellate court attorneys and court law clerks, because the funds
appropriated to the Texas Supreme Court and Courts of Appeals were intended to include a pay raise
for appellate court attorneys and law clerks averaging 13.5 percent.4 These court employees were
to receive a “targeted”5 pay raise rather than the general state employee pay raise authorized by
section 10.12, and the anticipated pay raise was included in the appropriations made to the appellate
courts. These are “block grant” appropriations, which appropriate funds to each court for one or two
broad purposes. See General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IV, at IV-l (2001)’
available at http://www.lbb.state.tx.us (appropriations to Texas Supreme Court for “Appellate Court
Operations” and “Basic Civil Legal Services”); IV-4-l 1 (2001) (total appropriation to each court of
appeals was for “Appellate Court Operations”). The brief informs us that “[tlhe block grants for the
courts of appeal all included a specific amount of money to be used by the chief justices in their
discretion to award above average pay raises instead of the four [percent] appropriated to all other
non-targeted state employees,“6 and that “[tlhe Legislature has always given the courts, as a separate
branch of government, more leeway in overseeing their budgets than other state agencies.yy7 The
appropriations to the courts did not identify an amount of money allocated to salaries or raises for
appellate court attorneys and law clerks.

         Documentation accompanying the brief indicates that pay raises for appellate court attorneys
and law clerks were considered in determining the appropriations for each appellate courty8 but this
kind of detail is not found in the text of the appropriation act itself. The General Appropriations Act
provides in section 6.05 of article IX that, “[i]n the event an agency cannot determine legislative
purpose from the pattern of appropriations, the agency shall seek to determine that purpose from the
proceedings of the legislative committees responsible for proposing appropriations for this state.”
General Appropriations Act, 77th Leg., R.S., S.B. 1, art. IX, 5 6.05 at IX-39 (2001)’ available at
http:llwww.lbb.state.tx.us;   see also Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284



         4See Ellis-June11 brief, at 2.

          ‘A “targeted” pay raise is directed or “targeted” at a defined class of employees,   such as the employees   of a
specific agency or employees in a particular job classification.

         6Ellis- June11 brief, at 5.

         7k?. at 5-6.

         *See Ellis-June11 brief, Attachment   A.
Mr. Jerry L. Benedict   - Page 7             (JC-0456)




(Tex. 1999) (w h ere statute is unambiguous, plain-meaning rule applies). We have determined a
legislative purpose from the pattern of appropriations that implements the Position Classification
Act, the general law that “provides the salary structure for specified state employments.”     TEX.
GOV’T CODE ANN. 0 654.002 (Vernon 1994). Accordingly, we may not rely on information from
the legislative committee proceedings to depart from our conclusion based on the language of the
General Appropriations Act.
Mr. Jerry L. Benedict   - Page 8             (JC-0456)




                                       SUMMARY

                        Briefing attorneys and law clerks with the state appellate
               courts are entitled to the four percent salary increase authorized by
               article IX, section 10.12 of the 2001 General Appropriations Act if
               they meet the length-of-service     eligibility requirements stated in
               article IX, section 10.12(i). General Appropriations Act, 77th Leg.,
               R.S., S.B. 1, art. IX, 5 10.12, at X1-76-78 (2001)’ available at
               http:llwww.lbb.state.tx.us.

                                              Yo   svery trul ,



                                            4 (I
                                              JOHN
                                                   OL
                                                           T
                                                       CORNYN
                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
