Untitled Texas Attorney General Opinion ( 1962 )

Ho& Bill M. Collins Opinion No. Ww-1328
&feCUtlVe Director
Texas State Parks Board Re: Whether the State Parks Board
Austin, Texas is authorized to issue warrants
payable to Mr. Vessels at the
rate of 84% per month under
the stated facts and related
Dear &fro Collins: question.
You request the opinion of this office on the following
questlonsr Is the State comptroller legally authorized to is~sue
warrants payable to Mr. Say Vessels at the rate of $494 per month,
begInningMarch 1, 19621 If the first question Is answered in the
affirmative, is the State Comptroller legally authorized to issue
warrants payable to PIr~.Vessels for the difference between the sal-
ary rate of $494 per month and the amount actually paid, retroac-
tive to August 21, 19611
The material facts are set forth below. For reasons
which will become evident later, we advise that this opinion is
based upon the facts herein presented and no others.
On August 21, 1961 upon motion of Mr. Kilman, the State
Parks Board unanimously adopted an order to place Mr. Jay Vessels
in full-time employment with an annual salary of $5,928. NOac-
tion was taken regarding Mr. Vessels I status until September 1,
1961. At that time, the decision tias made that Ur’. Vessels could
not be paid more than the midpoint of salary group 10 ($4735 per
annum) based upon the classification of his position as Director
of Public Information, Claes No. 7810, Mr. Vessels apparently
was paid the midpoint salary from September 1, 1961, until Febru-
ary 28, 1962.
The official minutes of the State Parks Board reflect
‘the following action on February 20, 1962 :
WEPEAS, on August 21, 1961+the Texas State
Parks Board unanimously agreed that Jay Vessels be
put on a full-time basis at the amount appropriated
for Director of Public Information and Editor of
S-Parks ; and ‘.‘,,
WIEPgAS it was the intention-of the Board
that said acti on be effective immediately, as of
&Ion, mu. ,& Collins, page 2 (W-1328)
A ust 21 1961, and that the salary that the Board
in3 ended to be paid to said Jay Vbsels be4j inning
August 21, 1961 was the appro iatipn of $ ,928
($494 a month), appropriated For Hirtorian ~md Re-
search Director, ,aow therefore,
lettir~dated ?ebruary 28 2, orrbtm
1 copy to Cap-
troller of %a blfC hCOWh8 %k. fiYdt i!!s ohuta, the duly ap-
intnd al16 aotiq Classifbation Offloer in the office of the
&a t@ Auditor, a&Mad the State Par&# Board that the ‘kgislatlvr
AUdSf Gaa%ttete had authoritrd him to obtain and consider the
fnotrr of this rftuatlon for the pur 080 of rerolvlng any inequity
that might be found to exdlst, The lndi 8 and conclusions of
. tha C~arrifiortion Gfffcer are stated’ in %e foll0wing paragraphs
frorrhis- letter 8
Wad the Board order been oarried. into effect
#r, Verrrls, wider the krm of BOWS Bill 189 and
6rank Bill 1 would have boon l lf(i@le to reeofve
atigluy o$ $8,928 pnr year dorbq ,Sihe ourront bieri-
0
“It is sky opinfon that *. Vesselrr has bern
knadvertentl~ deprived of the salary otection fn-
teadad by the kglslatura in &wre’Bi f?1169 and
Bmnto Bill 1 and that It would be proper to ro-
atore aa of hhreh 1 1962, the rnte .of $5,928 pr
yeu ,b94 per lbonth30”
The btato Parks Board rub&Mod l payroll to the &ate
Comptrolldr~oovering Mrr,Vessels for the month of March 1962, in
the amount of $b9b, The request for thir ,opinion then states,
“The State Comptroller has refused to Issue a warrant in payment
of said claim unless the Office of the Attorney General issues a
written opfnfon that the State Comptroller is legally authorhced
to lrrue a warrant in said amount.
?&us@Bill No., 4, General Appropriations by the Fifty-
rirth Lo rlnturo (3rd Co& 1959, Art, XII) wided out of the
OomiW ii voimo ?md to the Btato Fwks Boarr for salarim and
‘wa on line item namber f%ve, &storiau ’Ra#earch Director,
WIta an amma sale not to lxooed $5+;ede$ Sootion 42 of Art%-
oln V of the ?a?? Aolx added $lt#, annually W ths line .i$em for
.. ..
.
an. B~U M. Collins, page 3 W-1328)
.
a total annual item appropriation of $5928. Article 6067;Ver-
non’s Civil Statutes, created the State Parks Board and subse-
,iquent statutes prescribe the duties of”the board. There oan be
‘~no quo&ion that it is the board upon whomthe authority of
these statutes Is conferred, and this Includes the authority to
employ and discharge, in ‘the board’s discretion, such em;I$yees
as may be provided for in appropriations to the.board.
Attorney General Opinions WW-32 (February 21, 1957) and WW-66
(March 18, 1927).
The State Parks Board was authorized to employ a His-
torian and Research Mrector and to determine the necessity of
.filling the position, together with the discretfon to set the
salary 80 long as the maximumitem appropriation was not exceeded.
These questions were concluded by the decision of the board in
its minute orders referred to previously. In a similar situation,
the Supreme Court of Texas would not consider the necessity for a
particular em loyee or the roprlrt of his en loyment. Terra
Y. S-r& , 108 Tex, 191, 13f S.W. 53[9, 522 (1911).
Attorney General Opinion No0 ``-1306 (April 11, 1962)
was concerned with a dispute of the validity of~findings by the
Texas Highway Commission and is in agreament with this opinion.
55 S.W02d 153 160 (Clv.App, 1932 error
‘that opinion & this point and for’emphasls
Is quoted here:
In matters of judgment touching the
commi?&&~s functfona theirs and not that of
another is supreme. Certainly their acts other
than those of a purely ministarfal nature should
not be stayed at the hands of the c.a$rts, and the
important functions of the departmen’tYthereby im-
peded or Impaired, except upon verified allegations
of fact showing unequivocally that they are exceed-
ing tha bounds of their legal authority; and as
certainly : Their acts %n the exercise of an hon-
lst discretion, must be respaoted when untainted
by fraud o e o or such abuse of discretion as un-
der the authorities would avoid the rame. D 0 . 1s
In the absence of verification of fraud or facts un-
l.,equivocally showing that an agency has exceeded its authority In
,these matters, the appellate courts of this State will not ques-
1,.,:
tion the judgment of the board or oommlsslon to whomthe discre-
tion is ooaitted* neither will the Attorney General nor shall
the dtate Comptroller or hfs employees,
The fact that the Stat0 Parks Board deemed it necessary
on February 20, 1962, to correct and clarify fts previous minuta
Ron. Bill M. Collins, page 4 oiw328)
order of August 21, 1961 is immaterial. The right of adminis-
trative bodies to amend &heir records does not depend on statute
It is ah Inherent right. When,the records do not speak the truth
or are subject to misunderstanding the may be cha ed tomcon-
Sam to the actual truth, 73 C.J.fr, 315, Minutes 83 Records,
Sec. 22, anc¶cases there cited.
l’urning to the current General Appropriations by the
FlSty-seventh Legislature (Senate Bill No. 1 1st C,S. 1961) we
find that In Article III, appropriations to ihe State Parks hoard,
there ie no Qob Cl~ssiSicatlOn for HistOrlan and Research Mrec-
tar. !T!hereis, however ‘the position OS Director of Public In-
Sormatlon9 Class No. 78fO. This Is the sane ,&ass and position
for which Mr. Vessels has been paid the midpoint salary since Sep-
tember 1, ,196l.
!fhe letter Srom the classifiof4tion Officer to the State
mks Board, referred to previously, constitutes a determination
,that the previous position of IZLstorian and Research Director
held by Ur. Vessels how appears as the position of Director of
Rtblic InSormatlon, Class No. 7810, There can be no question
that Mr. Veseels has performed the duties of this position, at
least since September 1 1961, since he has received compensation
at the midpoint salary )or the position,
The ClasslSfcati0n Officerts letter also constitutes a
finding that had .the previous salary proviso of the Position
Classification Act of 1961 been applied, I&$. Vessels would have
been entftled to receive the higher salary of hfs previous posi-
tion as Historian and Research Director,
“he Position Classification Act OS 1961 is codified as
Article 6252-11 Vernon’s Civil Statutes o The previous salary
provfso Is the ?hird paragraph in Section 2 of the statute and
reads as follows:
“It is further provided, however, that no em-
ployee who is presently employed by the State shall
be paid less through the application of this Act
than the salary he received in accordance with the
provisions of House Bill NoJo, 4 Acts of the Fifty-
sixth Legfsleture, Third Called Session, 1959, or
the minimumof the appropriate salary range speck-
fled in the General Appropriations Act effective
September 1 1961, whichever Is the higher so long
as r8id es~ ioyee remains in such clrsriiiecf position
under the #ositlon Classfflcatlon Planon
We believe that when the previous salary prwfso and
the tiergency clause of the Position Classification Act of 1961
Don. Bill M. Collins, page 5 W-1328)
~(Section 9) are read together a clear legislative intent is evi-
denced to protect to the public employee his higher previbus sal-
ary equitably resolving all reasonable doubts in favor of ~the
public employee. Attorney General Opinions WW-1135(September 7,
1961) WW-XL39(September 11, 1961.1, W-1159 (October 6, 19611,
WW-12!?2(December-14, 19611, and WW-1293 (March 29, 1962) on the
Position Classification Act of 1961 are consistent with this con-
clusion.
We are also of the opinion that the facts of this case
clearly show that the jurisdiction of the Classification Officer
was properly invoked to predetermine whether the action in ques-
tion constituted an exception or violation of the Position Classi-
fication Plan and that the Classiflcatibn Officer’s determination
of the facts are conclusive not only upon the State comptroller
and his employees, but the Attorney General as well, for the rea-
sons set forth in the following paragraphs.
Section 6 of the Position Classification Act establishes
in the office of the State Auditor the position of Classification
Officer who shall be appointed by the State Auditor, subject to
3he``~advlce and approval of the Le islative Audit Committee. The
“last three paragraphs of Section it relate to the duties of the
Classification Officer with respect to enforcing the provisions
of the Act, as follows:
When exceptions to or violations 0s the Posi-
tion Classification Plan or of prescribed salary
ranges are revealed by personnel audits, the Classi-
fication Officer shall notify the agency head in
writing and specify the points of nonconformity or
violation. The executive hea& of such agency shall
then have reasonable opportunity to resolve the ex-
ception or end the violation by reassigning the em-
ployee to another position title or class consistent
with the work actually performed, by changing the
employee 1s title or salary rate to conform to the
prescribed Classification Plan and salary range or
by obtaining a new class description of work ad
salary range to correct the exception or violation.
Vlf no action is taken by the executive head of
such agency to correct or end the exce tion or viola-
tion wlthln twenty (20) calendar days Ballowing the
date of the written notification made by the Classl-
Sication Mficer, such GSSicer shall make 8 written
report of the facts to the Governor and the Legisla-
tive Budget Board. The Governor may then determine,
after obtaining the advice of the Legislative Audit
Hon. Bill M. Collins, page 6 (wW-1328)
Committee, the action to be taken in correcting the
exception or violation and may, within his dlscre-
tion, direct the Comptroller not to issue payroll
Yarrants for the employee or for the position affected
by the exceptfon or violatfon until such discrepancy
has been corrected.
“Any decision or finding made by the Classifica-
tion Officer under the provisfons;,of this Act may be
appealed by any employee or by the executfve head of
any agency to the Legislative Audit Committee under
such rules governing appellate procedure as said Com-
mittee may adopt ae
Section 8 of the Act provides that all laws or parts of
ooni’llat with the Act are repealed or modified to the ex-
such conS1ict only.
The language of these sections is clear that the Classi-
fication Officer lnlt%atee 8ctlons to enSorc6 exceptions or vlola-
tlone of the provisions of the Classification Plan. A clearly
defined procedure for the 8ction is designated, and when all other
methods are lnoapable of obtaining conSormanao with the Act the
Governor may direct the Comptroller not to issue the payroll war-
rant 0s the employee or posltfon fnvolved.
In the entire ret the gtatc Comptroller fs mentioned
only to the extent that cer%fn information is to be provided him.
In r8Ot, the only apparent auty 0s the ptroller or his employ-
IT
ees with respect to the Act appears in ubwction 0 of Section 13
OS .&t&ale 111 OS the Genor81 Appropriat%ons by the Fifty-seventh
Leglsldure, pyp%~, whach reads as follows:
Re-Audit by Comptroller In order to
Sacil%e compliance with the pr&lsfone in this
Sectlon and. the pre-audit of payrolls, each agency
afiected by the Position ClassfSfeatlon Act of 1961
and for which appropr%atlon’s”are made In this Act
shall certify to the Comptroller on such forms and
et such times as he may prescrib89 the rate of pay
applying to each rifeeted employee at such tfme as
he may prescribe, the class of work and pay rate
applying to each affected employee at any given date
8s he may rescr$be during the biennium ending Aug-
ust 31s 19B3e the variation fn the amount of salary
or wage payments to whbh he is entitled, and the
S”b;; zunds from whfch such additional amounts are
0
Hon. ~11 M. Collins, page 7 W-1328)
We think that further elaboration Is unnecessary to
conclude that the above Section is not nor was it intended to
be, authority for the Comptroller Is a&on in this’ case. In
~the face 0s a clear statutory designation of the officers 0s the
State to~whom enforcement of the provisions of the Position
:ClassiSicatlon Act are entrusted, there can be no doubt that the
‘Comptroller Is without outhority for his action in this case.
There is no maxim 0s statutory construction so settled
in the law as that which holds that an action of the Legislature
shall not be so construed 8s to render the action meaningless or
frivolous. See 82 C,J.S. 593, 622 Statutes, Seas. 323, 326.
This, we think, would be the resuli IS the Comptroller’s action
in this case were condoned. A determination by the Classifica-
tion Officer and the Legislative Audit Committee that Mr. Ves-
sels is entitled under the facts to receive the protection of the
salary protection proviso is rendered a nullity if in order for
the payroll warrant to be issued the action mus$ conform to the
satisfaction of the Comptroller or his employees or if the action
must be affirmed by the Attorney General.
We reserve no doubt that had the Legislature intended
for the Comptroller or his employees to determine whether or not
a particular em loyment was an exception or in violation of the
Position Classi Pication Act, it would have done so in the same
clear language that it bestowed that function upon the Classifi-
cation Officer the Legislative Audit Committee and the Governor.
We think that It equally is clear that the Comptroller, not hav-
ing such authority directly,,cannot exercise the authority indi-
rectly by refusing to issue the payroll warrant in question.
The Supreme Court of Arizona construed the duty and re-
sponsibility of the officer charged with auditing claims against
the State and issul warrants for payment in Proct r v. Xunt 43
Aris. 198, 29 P.2d Y 1 58 (1934). ‘The case involved z statutor$ ac-
tion for recovery of funds and penalties from the State Auditor
of Arizona for 8llegedly Issuing warrants for claims not for a
uM.O.;apurpose 8s required by the Constitution and Statutes of
%r .
As quoted by the Court at 29 P.2d 1060, the State Audi-
tor of Arizona, whose,,duties to audit and issue warrants are com-
parable to those of the State Comptroller of Texas, had the Sol-
lowing specific statutory authority to investigate claims presented
r or paymenta
” . If such an investigation disizloses that all
0; ;ny portion of any claim is not for an actual
public purpose conneoted with the aativities of the
. . I
Eon. Bill W0 Collins, page 8 W-1328)
office, board, commission,’ or department where
the claim originated, he shall refuse to draw
8 warrant,. except for such &mountof ‘each claim
as apEears to be for an actual public purpose.
e . 0
Des fte the broad language of this statute, the Court
raid (page 1080 1:
n ASter this is done [referring to certain
pie~e&ufsites 0s form for submitting 8 cleim],
it must be presented to the auditor, and, ff it
is, on its ace, ror a public purpoiie and is
properly ifemised and accompanied by vouchers,
Continuing on page 1061 the Court explained that the
;+zeon for its holding was actually for the benefit of the audi-
:
“a 0 0 Ii this is not true, and if the
auditor must at her peril, determine not only
that the claz?.m, on its face? was for a proper
purpdse and that there is an appropriation to
pay it, but that the items of the clafm were
necessary and actually used for their ostensible
purpose, she must, by herself or her deputies,
investigate every transaction of every depart-
ment of the state government to the uttermost de-
tall, before she dare approve a claim for the
purchase 0s even 8 paper of pins. IO0officer
could make a long-distance telephone call, how-
ever urgent until he had first consulted with
her as to iis necessity and advised her of all
Its details, so that she mi.&t deteiWn6 if it
were for a public purpose L ., 0 DIt
We think that due tomthe similarity of the Arizona pro-
.- cedure for auditi elafms and issuing warrants with those of
Ply due to the fact that under these particu-
%?i%%s nIces the State Comptroller doee not have the specific
duty and authority to investigate claims possessed by the State
Auditor of Arizona, the n case Is authorltatfve. But there
is more, an even earlier decision of the Supreme Court of Texas.
I .
Eon. Bill H. Collins, page 9 (WW-1328)
InJUlmore v. Iane, 104 Tex. 449, 140 S.W, 405 (19111,
a mandamusaction to compel the State Comptroller to,issue his
warrant for the salary of a state Employee, the Su rem6 Court of
Texas construed a predecessor statute (Acts 3rd C. 8 o 1910 p. 37)
to the present Article 4357, Vernon’s Civil Statutes; Both the
previous and the present statute relate to auditing claims and
issuing warrants of the type here in issue and in this respect are
not materially different.
The Court recognieed that the duty of the Comptroller to
issue the warrant was discretionary to the extent necessary to
ascertain wkmther the claim was made in pursuance of some specific
appropriation. The discretion did not clothe the comptroller with
absolute or arbitrary power to withhold the issuance of his war-
rant the Court said, however, at 140~S.W. 406 :
tt* . . V no such appropriation has been made as
a basis for the claim, the Comptrolly is not re-
quired to issue the warrant3 but on he other hand
Attorney General Opinion V-1111 (October 3, 1950) con-
strued the duties of the county auditor to ex8mfne and epprove
claims in connection with expenses of visiting district judges.
We believe that the facts of the opinion are suSSiclently in point
for it to be relevant.
AWScle 1660, Vernon’s Civil Statutes, re uires that no
claim, bill or account shall be allowed or paid by Y&l e commission-
ers court until it has been examined and a proved by the county
auditor. Section 10 of Article 2008 provl xes that when district
judges are assigned to districts other than their own, they shall
receive actual expense for travel and subsistence which shall be
paid out of the General Fund of the county In which their duties
are performed upon accounts certifletl and approved by the presld-
‘Lng judge of ch6 administrative district.
The opinion held that expense accounts of the visiting
distridt jurlge are subject to audit by the county auditor from 8
wbookkeeping standpolnt,tt but such audit Is not to be construed
so as to authorize a county auditor to review the leg8lity of ite#a
of expendutire contained in the expense account when the 88186has
been certified and approved by the presiding judge of the admlais-
trative district. ,.
. . .
ml. Bill w. Collins, page 10 (``-1328)
:
We believe that the authorltl& discussed above are
euSSiclent to define the extent and limit OS the Comptroller’s
duty in auditing ~l8fm~pr6s6nted to him SOP payment. In this
ceBe 811 prrrequlsltes 0s form for a valid payroll voucher pre-
sumaily being in order an% an appropriation Item with sufficient
funds to pay the voucher being in existence there remains but
the ministerial duty of the Comptroller to &ue the payroll war-
rant, which %uty is mandatory.
Turning now to the second qu&stion for which our opln-
ion was requested: Is the State Comptroller legally authorize%
to Issue warrants myable to Mr. Vessels for the difference be-
tween the salary rate of &9& per month ‘and the amount actually
pal%, retroactive to August 21, 19617
We have previously stated that in the absence of veri-
fication of fraud or facts unequivocally showing that an agency
has exceeded Its authority in matters such as this the appellate
oourts OS this State will not question the ;Jzn? of the board
or commission to whomthe direction is comld This being
true, we believe that Mr. Vessels was in fact employed at an an-
nual salary of $5928, beginnlng from the time of the State Park
Board’s minute or%er.oS August 21 1961. The mere fact that due
to an 8coountfng error no r8uit 03 his own the proper payroll
entry was not made until March 1962 should not operate to deprive
Mr. Vessels of the salary set by the State Parks Boar% in its
original order O
‘“‘Artic,ie III, Se&Son 44 of the’ Constitution of Texas
states: .’
AThe Legislature shall prwfdo by law for the
compensation 0s all oSri0ers servants, agents and
public contractors not pr,w~%e% for in this Con-
stitution but shail not grmt extra compensation
to any odicer, *gent, servant,, or public contrac-
tor, after such public ,rervice shall have been per-
formedor contract entered into, for the perform-
8nce of the same; nor gr8nt, by 8ppropriation or
otherwise~, any amount of money out oS the Treesury
of the Estate, to any individual on a claim real
or pretended, when the same shail not have. ieen
provided for by pre-erirting law nor employ any
one in the name o? the State, un.l6:s authorize% by
pro-ejcistlng law,” 1,
A contraot of employmentiauthorized by statute r? yde
.byan officer having authority binds the Btate. See Terr 1
8t I.35 8,W. 521. The pte-•xirting law upon which
mm red must QN8te a lejal obligrtlon sufficient to
::;
I .
Hon. Bill M. Collins, page 11 (WW-l328)
form the basis of a judgment against the State in a court of com-
petent jurisdiction should the State consent to be sued. See
Austin Nat. Bank v. ShenPaar%.123 Tex. 272, 71 S.W.2% 242, 245
(1934). We think that the f&s of this..case demonstrate a valid
contract for employment based upon pre-existing law within the
meaning of the previous two cases.
The payment to Mr. Vessels for the difference between
the salary rate of $494 per month and the amount actually paid him
during the period from August 21, 1961, to February 28, 1962, Is
not the ranting of extra compensation prohibited by Article III,
Section 44 of the Constitution of Texas because under the previous
salary proviso of the Position Classification Act, Mr. Vessels was
entitle% to be paid no less through the application of the Act
than the salary he received pursuant to the provisions of House
Bill No. 4, sllp``.
Article 435'7, Vernon’s Civil Statutes, prescribes the
formalities of presenting a claim to the Comptroller. The Arti-
cle also states:
‘1. . . No claim shall be paid from appropria-
tions unless presented to the Comptroller for pay-
ment within two (2) years from the close of the
fiscal year for which such appropriations were made,
but any claim not presented for payment within such
period may be presented to the Legislature as other
claims for which no appropriations are available.1t
Should a claim for payment to Mr. Vessels for the dif-
ference between the salary rate of $494 per month an% the amount
actually paid during the period August 21, 1961 and February 28,
1962, be presented to the Comptroller in.proper form within the
\., time prescribe% by Article 4357, the Comptroller would be legally
authorized to issue his warrant in payment of said claim.
The State Comptroller has a ministerial duty,
which is mandatory, to issue his warrant in Savor
of Mr. Jay Vessels, an employee of the Texas Parks
Board, In the amount of $494 for the month of March
1962 and each month thereafter provided that a
proper voucher in due form is ilmely presented.
The Comptroller is legally authorized to issue his
warrant In favor of Mr. Vessels for the difference
between the salary rate of $494 per month and the
xon. ~111 X. COU.~S, page 12 (ww-1328)
amount actually paid during the period August 21,
1961 and February 28 1962 u on receipt of proper
claim lrdue form wlihln thn &me prescribed by
Article 4357 of Vernon's Civil St+@tes.
"
Yours very truly,
wILLwILsoN
Attorney General of Texas
wg.R* km&
F. R. Booth
Aasiatant
APROVED:
OPIriIONCOmmTFzi
W. V. Geppert, Chairnan
John Reeves
Rolerug;
Grady Chandler
RISVIEWED Fm !CEB AT!tCt?XBY
GBI’SRAL
By: Houghton BrownIre, Jr.