Untitled Texas Attorney General Opinion ( 1986 )

.
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