Untitled Texas Attorney General Opinion ( 1981 )

The Attorney’General of Texas
May 7, 1981
MARK WHITE
Attorney General
Honorable Ron Jackson Opinion No. ``-334
Executive Director
Texas Youth Council Re: Whether teachers employed by
8900 Shoal Creek Boulevard Texas Youth Council are entitled to
Austin, Texas 78766 longevity pay under article 6813d,
V.T.C.S.
Honorable George W. McNiel
The State Auditor
Sam Houston Office Building
Austin, Texas 78711
Your questions concern article SSlSd, V.T.C.S., and article II, section
2a of House Bill 558, the General Appropriations Act, Acts 1979, 66th Leg.,
ch. 843. Article 68134 provides that:
. . .each state employee covered by the Position
Classification Act of 1961, each line item or exempt
state employee [andI each regular full-time hourly
employee of the state. . . is entitled to longevity pay
of a maximum of $4 per month for each year of
service as an employee of the state up to and
includfng 25 years of service.
Article II, section 2a, of the appropriations act provides as follows:
(a) SALARY PROVISIONS. (1) EXEMPT
POSITIONS. Positions employed in institutions. . . of
the. . . Texas Youth Council, which are exempt from
the Position Classification Plan, shall be paid at
annual salary rates not to exceed those specified in
this Section. . . .
. . . .
(5) TEACHERS. Each. . . classroom -teacher. . .
shall receive as a minimum salary the clessroom or
exceptional teachers monthly salary rate, plus incre-
ments specified in Senate Bill No. 116, Acts of the
Fifty-first Legislature, 1949, as amended [see Public
Education Compensation Plan, section 16.056 of the
Education Code]. . . .
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Honorable Ron Jackson
Honorable George W. McNiel
Page Two (Mu-334)
Salary rates in excess of the minimum amounts specified in
Senate Bill No. 116. . . may be paid; but such approved rates
shall never exceed the rates of pay for like pOSitiOnS pard in the
public schools of the city in which the State School or Home is
located. (Emphasis added)
Acts1979,66th Leg., ch. 843, art. II, §2a, at 2540, 43-44.
Mr. Jackson asks the following questions:
1. Are teachers employed by the Texas Youth Council
(TYC) state employees for purposes of receiving longevity pay
under article 6813d, when they already receive a salary
supplement for longevity under the Texas State Public Educa-
tion Compensation Plan?
2. If they are, may the TYC authorize payment of longevity
pay to a teacher when such payment would result in a higher
salary rate than that paid fcirlike positions in the public schook
of the city in which the state school is located, notwithstanding
the provisions of article 11, section 2a(5) of the appropriations
act?
Mr. McNiel asks these questions:
1. Should the state’s payment of a portion of the employee’s
share of social security contributions required by Senate Bill
No. 20, Acts of the Sixty-fifth Legislature, be considered. in
calculating the salary rate of the teacher for comparison with
the rates of pay for like positions in the public schook of the
city in which the state school is located?
2: Should the state’s contribution for the employee’s group
insurance premiums be included in determining the teacher’s
salary rate?
We .will address both of Mr. Jackson’s questions at the same time. First, this
office has previously held that TYC teachers are state employees for purposes of
receivingpay for accrued vacation time, Attorney General Opinion H-829 fl976), and
sick leave, Attorney General Opinion H-775 (1976). While those opinions dealt with
provisiorw of the 1975 appropriations act, we pemeive no basis for reaching a different
conclusion with respect to whether they are%tate employees” within article 6813d.
We therefore conclude that, inasmuch as their positions are exempt from the Position
Classification Plan, s article II, section 2(a)(l) of the 1979 General Appropriations
Act, TYC teachers are “exempt state employees” within article 6813d and are
therefore eligible for longevity pay under that provision.
p. 1083
Honorable Ron Jackson
Honorable George W. McNiel
Page Three (``-334)
You ask whether the TYC may authorize payment of longevity pay ~to a TYC
teacher “when such payment would result in a higher salary rate than that paid for like
positions in the public schools of the city in which the state school is located.” If, as
your question assumes, a TYC teacher’s “salary rate” would in fact be increased by the
addition of such longevity pay, we would answer this question in the negative. It is our
opinion, however, that a TYC teacher’s “salary rate”, as that term is used in article II,
section 2a of the appropriations act, is computed on the basis of the k.salary paid
the teacher. Longevity pay which a TYC teacher receives pursuant to artrcle 6813d is
not part of that base salary, and, therefore, is not to be considered when calculating
the teacher’s “salary rate.” See General Appropriations Act, Acts 1979, 66th Leg., ch.
843, art 11, S18, at, 2555, (ahod for computing TYC teacher’s salary rates). We
therefore conclude that a TYC teacher may receive longevity pay under article 6813d
without violating article II, section 2a(5) of the 1979 General Appropriations Act.
We now turn to Mr. McNiel’s questions. Article 695h, V.T.C.S., sets forth
provisions governing federal old age survivors’ insurance coverage for state employees
and defines the state’s obligations with respect to contributions on behalf of state
employees under that program. Article 3.51 of the Insurance Code authorizes the state
and its agencies to procure contracts with licensed insurance companies for purposes
of insuring employees. Section l(a) thereof provides that premiums may be paid in
whole or in part from funds contributed by the employer and/or by the insured
employees.
Contributions made by the state on behalf of its employees under article 69511,
V.T.C.S., and article 3.51 of the Insurance Code undeniably constitute a benefit which
the employee receives by virtue of his employment. However, we are here concerned
only with the question of whether said contributions are to be considered in calculating
a TYC teacher’s salary rate for purposes of comparing that rate to the salary rate
established for a like position” in the public schook of the city in which the TYC
facility is located. We answer that question in the negative.
Unlike article 3.51 of the Insurance Code, article 695h expressly provides that
contributions made by the state are not to be considered compensation under any law
of this state. See V.T.C.S. art. 695h, S4. This provision, standing alone, would appear
to answer youiirst question. However, even if article 695h contained no such
provision, we would conclude that contributions made ,by the state under that statute,
like those made under article 3.51 of the Insurance Code, should not be considered in
computing a TYC teacher’s salary rate. They do not constitute additions to the
employee’s base salary. In our opinion, the legislature intended that, ~for purposes of
calculating a TYC teacher’s “sslary rate” under the 1979 General Appropriations Act,
only those amounts included in the teacher’s base salary should be considered.
SUMMARY
Teachers employed by the Texas Youth Council may receive
longevity pay under article 6813d, V.T.C.S., without violating
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Honorable Ron Jackson
Honorable George W. McNiel
Page Pour (Mu-3341
the provisiorm of article II, section 2a(51 of the 1979 General
Appropriations Act. Ccntributions ma& by the state on behalf
of a TYC teacher for purposes of social security and employees
group insurance premiums are not to be considered in calcula-
ting that teacher’s salary rate for purposes of article II, section
2a(5) of the act.
Very truly yours,
MARK WHITE
Attorney General of Texes
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVRD:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Edna Ramon
Bruce Youngblood
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