Untitled Texas Attorney General Opinion ( 1975 )

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
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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
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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
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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
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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