                                       March    14. 1975


The Honorable     Joe C. Moseley II                        Opinion    No. H-    553
Executive   Director
Texas Coastal and Marine Council                           Re: May the salary of the
P. 0. Box 13407                                            Executive Director   of the
Austin,   Texas   78711                                    Texas Coastal and Marine
                                                           Council be supplemented
                                                           from funds received    under
                                                           an inter-agency  contract?


Dear   Mr.    Moeeley:

         You have requested    our opinion concerning     whether a portion of
the funds made available    to the Texas Coastal and Marine Council under
a proposed   interagency  contract with the General Land Office may be
used to provide compensation      to the Council’s  executive director   addi-
tional to the amount appropriated     by the Legislature.

           Article   4413(38),   V. T. C. S.,   which creates        the Council,     provides
in part:

                          Sec. 3. (e) The council may appoint a director            to
                     serve at the will of the council.         The director    is the
                     chief executive    officer    of the council and subject to
                     the policy direction      of the council.    He may appoint
                     employees     to serve at his will.       The council shall
                     determine    the compensation       of the director    and all
                     other employees.

                         Sec. 5. Until the Legislature   provides   an
                     appropriation  for the operation of the council,  the
                     contingent expense funds of the House of Representatives
                     and of the Senate may be expended for such purposes




                                           p.   2485         .
The Honorable    Joe C. Moseley      II    page 2        (H-553)




                 authorized herein.     Prior to any expenditure    of
                 funds of the contingent expense     committees    of
                 either the House or the Senate, a budget for the
                 annual expenses    of the committee   shall be sub-
                 mitted to such committees     and no funds shall be
                 expended from such funds until approved       by that
                 committee.

        While section 3(e) gives the Council the authority             to “d&ermine
the compensation   of the director and all other employees,             ” allele  3,
section 44 of the Texas Constitution  provides:

                      The Legislature    shall provide by law for the
                 compensation     of all officers,    servants,   agents ad
                 public contractors,     not provided for in this Coatitu-~
                 tion, but shall not grant extra compensation          tomy
                 officer,  agent,   servant,    or public contractors,    after
                 such public service     shall have been performed IC con-
                 tract entered into, for the performance          of the rme;
                 nor grant, by appropriation        or otherwire,    any mount
                 of money out of the Treasury         of the State, to a*
                 individual,   on a claim,     real or pretended,    wha the
                 same shall not have been provided for by pre-saidsting
                 law; nor employ any one in the name of the Stab,
                 unless authorized     by pre-existing     law.

        In addition,   article   6813b,   V. T. C. S.,     provides   in part

                      Section 1. From and after the effective dak of this
                 Act, all salaries   of an Gtate officers      and State smployees,
                 including the salaries     paid any individual out d the General
                 Revenue Fund, shall be in such sums or amouis as may
                 be provided for by the Legislature         in the bienriil Ap-
                 propriations   Act.   It is specifically     declared ts be one of
                 the intents hereof that the Legislature         shall aim fix the
                 amount of supplemental       salaries    hereafter,   olt of court
                 fees and receipts,    to be paid to the clerks andother




                                          p. 2486
The Honorable Joe C. Moseley         page 3     (H-553)




                employees    of the Court8 1 Civil Appeals, the
                Supreme Court and the CIrt of Criminal Appeals.
                It is further provided thatin instances     where the
                biennial Appropriations     kt does not specify or
                regulate the salaries    or tempensation    of a State
                official or employee,    thellrw specifying   or regulat-
                ing the salary or compemtion       of such official or
                employee is not suspend& by this Act.

         The Legislature’s   power under rticle   3, section 44 may be delegated
in some instances.      Commissioners    Cowt of Lubbock County v. Mart&        471
S. W. 2d 100 (Tex. Civ. App. --AmarilloI.971,     writ ref’d n. r. e.); Wichita
County v. Griffin,    284 S. W. 2d 253 (Tex Civ. App. --Ft.     Worth 1955,
writ ref’d, n. r. e.); Burkhart v. BrazosRiver     Harbor Nav. Dist. of Brazoria
County,    42 S. W. 2d 96 (Tex. Civ. App. -Galveston      1931, no writ).

                So long as the statute is mmplete to accomplish        the
                regulation of particular mtters      falling within the
                legislature’s    jurisdictios matters of detail reasonably
                necessary     for the ultin-&e application,   operation and
                enforcement     of the law my be expressly     delegated to
                the authority charged wi@ administration.        (Emphasis
                added) Martin at 105.

         That case concerned      article 42P,    Code Grim. Proc.,    which allows
the compensation     of individual probatia.officers    to be determined    by a
district judge or judges with the adviceand consent of the commissioners
court.   See $10. The court found that t&s delegation        was reasonably
necessary,    stating:

                [s]ince the probation nesZs and services     in the various
                judicial districts  of Texa, ranging from multi-judicial
                districts  within a singlesounty   to one judicial district
                embracing~ as many as air ~counties, are of such character
                that the compensation     ad probation personnel    must vary
                in the different districts. . . . Martin at 105.




                                       p. 247
The Honorable      Joe C. Moseley        page 4      (H-553)




Burkhart and Griffin    similarly   concerned   the compensation     of employacs
of the e.ame class in different counties,    tax assersors,    and court repellers
respectively.    As in Marlin, the needs and services     of each county varisd,
and it was therefore Gctical         for the Legislature    to determine  the
compensation    for each tax assessor    and court reporter.

          It is clear that the single office of Executive Director           of the Cancil
is quite dissimilar        to the many offices of tax assessor,        court reporter,    and
probation     officers.      It is not “reasonably    necessary” to permanently
delegate the power to determine             the compensation    of the Executive    Dizsctor.
In addition,      the Legislature     has not “prescribed    sufficient   standards    ts
guide the discretion         conferred”    as required by Mmdy v. City of Univrraity
Park, 278 S. W. 2d 912 (Tex. Civ. App. --Dallas               1955, writ ref’d n. r.t.).
Ittherefore          our opinion that section 3(e) of article 4413(38),        V. T. CS.,
would be an unconstitutional           delegation  of power if construed to consttite
a permanent        delegation of the Legislature’s      authority under article     3,
 section 44 of the Texas Constitution.

          Where possible,    a statute is to be construed     so as to sustain ill
validity.   State v. Hogg     70 S. W. 2d 699, 72 S. W. 2d 593 (Tex. Sup. 164);
Martin, B.        Section’5 of article 4413 (38) expressly        applied only
“until the Legislature    provides    an appropriation   for the operation    of Pe
council. ” In our opinion,     this limitation is impliedly     contained in se&ion
3(e), and the council was delegated the authority to determine            the corxpensa-
tion of the executive director      only until the Legislature    itself could exercise
this authority.    We consider     this delegation to be “reasonably      necessary”
under Martin, and section 3(e) to be valid .under this construction.

         Accordingly,   the authority to determine  the salary of the exeottive
director   rests with the Legislature   pursuant to article 3, section 44 d the
Texas Constitution and article 6813b. V. T. C. S.

          However,  it is necessary   to consider  whether the council ma3
supplement    the salary set by the Legislature.     Article 6813b rtates &t
“ealaries   . . . shall be in such sums or amounts as may be providelfor
by the Legislature    in the biennial Appropriations   Act. ” Statutes which




                                         p. 2488
__.            -
                                                                                         L




 The Honorable         Joe C. Moseley      page 5          (OH-553)




 provide for the compensation     of public officers  are to be construed in
 favor of the government.     Madden v. Hardy,       50 S. W. 926 (Tex. Sup.
 1899); Allen v. Davis, 333 S. W. 2d 441 (Tex. Civ. App. --Amarillo
 1960, no writ);  Eastland County v. Hazel,       288 S. W. 518 (Tex. Civ.
 APP.   --El Paso  1926, writ  ref’
                                  d).

              In addition,   it has been stated    that:

                       The compensation     of a public officer must be
                       fixed by the Legislature,    or by some governing
                       body expressly   authorized    so to do. First Baptist
                       Church v. City of Fort Worth, 26 S. W. 2d 196,
                       198 (Tex. Comm. App. 1930).

           Consequently,   we believe the use of the word “shall” in article
  6813b indicates   that as a general     matter salaries    set by a general
  appropriation8    bill may not be aupplemented.         However such a salary
  may be supplemented      where authorized       by either the appropriations
  act or by general law.      Attorney     General   Opinion WW-376 (1958).
  This limitation   on the alteration    of salaries   is consistent  with the
  prevailing   law in other jurisdictions.      67 C. J. S. Officers,    593, p. 334,
  5 94, p. 340; Stansbury v. Guilford County, 36 S. E. 2d 719 (N. C. 1946);
  Lee v. Macomb County, 284 N. W. 892 (Mich. 1939).

               The Legislature    has .exercised   its authority under article 3,
      section 44 and article 6813b in the current biennial appropriations         bill,
      Acts 1973, 63rd Leg.,     ch. 659, p. 1928, as well as in the recent state
      employees     pay raise acts.     64th Leg.,   Senate Bill No. 1. approved
      Jan. 30, 1975. We have found no authority in either general law or the
      appropriations    act for the supplementation      of the salary of the executive
      director   of the Texas Coastal and Marine Council with funds from an
      interagency    contract.   The Legislature     thus having established   his salary,
      it is our opinion that it may not be supplemented         with funds from an inter-
      agency contract.

                                         SUMMARY

                             The Texas   Coastal   and Marine         Council   has no




                                            p. 2489
The Honorable Joe C, Moseley             page 6    (H-553)




                 luthority  to supplement    the legislatively
                 determined    salary of its executive director
                 with fund6 received by the Council pursuant
                 to an interagency   contract.

                                                     Very truly yours,




                                                     Attorney   General   of Texas

<PROVED:



%----TL
 DAVID M. KENDALL,           First   Assistant




 Opinion   Committee




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