Untitled Texas Attorney General Opinion ( 1963 )

EZE ATTORNEY GENERAL
OFTEXAS
August 7, 1963
Honorable Raymond W. Vowel1 Opinion No. C- 123
Executive Director
Board for Texas State Hospitals Re: A plicatfon of H.B. 86,
and Special Schools 58th Legislature, to
Austin, Texas present and subsequently
hired employees in the
Dear Mr. Vowell: Special 'S" salary rates.
You have requested our Interpretation of the recent
Appropriation Bill, H.B. 86, 58th Legislature, regarding the
following questions:
"1. May an employee hired prior to September
1, 1968, whose salary on September 1 is adjusted
to one of the "S" rates be treated the same as an
employee hired on or after September 1, 1963, by
having his salary subsequently brought to Step 1
of the designated salary range as the employee's
experience and performance may warrant.
"2. May such adjustments be made without
reference to the minimum time schedule and the
monetary allowance for merit salary increases
as provided in Article V, Sectionl, L, provided
appropriated funds are sufficient to cover such
adjustment."
By way of explanation, you have called our attention
to the fact that Section 1 B(a) of H.B. 86 provides only for "new
employees" hired after September l:,1963, as regards adjustment
of salary from one of the Special S" rates up to and including
Step 1, and as there is no similar provision for those presently
employed a serious discrimination against present employees could
result.
You further explain the similar lack of any specific
provision as totiether any such adjustments fn salary from one
of the Special "S" rates to Step 1 are subject to the provisions
governing Merit Salary Increases.
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Hon. Raymond W. Vowell, page 2 (C- 123 )
The General Appropriation Bill of the 58th Legislature,
reflects the untiring efforts of many persons interested in Improving
classification and salary conditions of State employees by adjusting
salarles to meet,present-day demands and by creating the desirable
uniformity of “equal pay for equal work.” In most instances the
Bill specifically and clearly defines the status of State employees,
but it nonetheless still gives the various departments of State
government a certain rangwof latitude and discretion In regard to
the salary of their personnel.
The Special "S" rates, themselves, are a good example
of this granting of discretion. Section 1B of H.B. 86 provides:
"B. HIRING POLICIES. 1. New employees
will normally be hired on Step 1 of the salary
range for the assigned group to which the position
is allocated, with the following exceptions:
“(a) Department heads may make appointments
at one of the special “S” rates below Step 1 either
for periods of training or to meet prevailing salaries
of localities in Texas encountered by the agency.
Such employees may subsequently be brought to Step 1
of the designated salary range as the employee’s exper-
ience and performance may warrant. Any Increases in
salary above Step 1, in the aame classlflcatlon, how-
ever, shall be made only in accordance with provisions
for merit salary increases hereinafter provided.'
Thus, the Legislature has provided for "new employees
hired in the Special "SI'rates" to be brought to Step 1; but, as
regards present employ&s, there is only Section 1 A 2 which reads
as follows:
“2. An employee who, In August, 1963: (a)
is not covered by the Position Classification Plan,
. .and who will occupy a claasifled position on
September 1, 1963, under the terms of this Act,
shall have his salary g+n$srQetl bea ,%&%),&n the ‘,
de&lg~ated salary group which represents the step
rate nearest above the rate paid in August, 1963.”
We then come to the problem OS determining If presznz
employees who on September 1st are converted to the Special S
rates may also have their salary adjusted up to Step 1 the same
as new employees,
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Hon. Raymond W. Vowell, Page 3 (CA123 )
The courts of this State have consistently held that
statutes should be construed so as to effectively carry out the
legislative intent even though the literal meaning of the words
used therein is not followed or It is necessa to supply'omlsslons.
Patterson v. City of Dallas, 355 S.W.2d 830, 8
3 4 (Tex.Civ.App.,
lgb2 f ) and cases there cited; and Wood v. State,
133 +eYYfOTelh~ i:i:% 4, 7 (1939).
If we were to hold that In view of the lack of specific
authorization for treating both new and old employees alike only
new employees in the Special "S" rates could have their salaries
adjusted, the most undesirable result of Injustice and discrimina-
tion would occur, for one of the main purposes of job classification
and the accompanying salary schedule was to eliminate such evils.
Further, the Legislature has never evidenced an intent to discrimi-
nate against "old employees" and it certainly is not within the
spirit of this Bill to discriminate against "old employees" to the
advantage of "new ones" hired on or after September 1, 1963.
Therefore, notwithstanding the lack of specific reference
to "old employees in Section 1 B a" we hold that the provisions
relating to adjustments in salary from one of the Special "S" rates
to Step 1 apply equally to "both 'newt and told' employees." In
reaching this result we are attempting to give full credit to the
overall legislative intent which, once ascertained, cannot be thwarted
by an interpretation which would lead to the very injustice sought
to be alleviated.
As regards your second question, Section 1 B (a) provides
for adjustment "as the employee's experience and performance may
warranty up to and Including Step 1, but "Any increases In salary
above Step 1, in the same classification, However, shall be made
only in accordance with provisions for Merit Salary Increases
hereinafter provided." We would also point out that there is no
mention of the Special "S" rate in the specific table of Merit
Salary Increases found in Section 1 L(1) in providing for both the
minimum length of State service and time in Step requirements from
Step 1 through Step 7.
Therefore, we feel that the various State departments
were left with the discretion of determining when an employee's
experience and performance warrant adjustment In salary, and that
the Legislature so chose to place this latitude of discretion be-
cause of the difficulty 3n determining the necessary period of
training or of foreseeing local prevailing salaries in Texas.
We specifically hold that such Is equally applicable to
both old and new employees and that such adjustments may be made
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Hon. Raymond W. Vowell, page 4 (C-,123 )
provided that funds are available. Such adjustments are not
merit salary increases, and therefore do not count in computing
.4$ limitation placed on Merit Salary Increases in Section
SUMMARY
Employees hired prior to September 1, 1963,
whose salary on September 1 Is adjusted to one
of the "S" rates and those employees hired on or
after September 1, 1963, may subsequently be brought
to Step 1 of the designated salary range as the em-
ployee's experience and performance may warrant.
Such adjustments are not Merit Salary Increases, and
therefore may be made without reference to the pro-
visions of Section 1 L regarding minimum length of
State service and minimum time In Step after September
1, 1963.
Very truly yours,
WAGGONER CARR
Attorney General
By !!Phy%
Assistant
PP:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Corbln Lee Snow, Jr.
Grady Chandler
Pat Bailey
Howard Mays
APPROVED FOR THE ATTORNEY GENERAL
BY: Albert P. Jones
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