Untitled Texas Attorney General Opinion ( 1962 )

March 29, 1962 Honorable J. W. Edgar Opinion No. WW-1293 Commissioner of Education Texas Education Agency Re: Whether the position of Austin, Texas Investment Officer and of Assistant Commissioner for Vocational Rehabilitation and Special Education may be paid an annual salary rate of $11,000 under the Dear Dr. Edgar: facts submitted. Your request for an opinion on the above subject matter reads as follows: "In January, 1962, the State Board of Education completed plans for expanding the Permanent School Fund Investment Program to include corporate securites. This expansion was made to Implement statutes enacted by the 57th Legislature, Regular Session. The position Investment Officer, at an annual salary of $ll,OOO., was established to serve as administrative head of this program. "The Board also established the position of Assistant Commissioner for Vocational Rehabilitation and Special Education at an annual salary of $11,000. This position was established to give direction to five divisions of the Texas Education Agency that are concerned with services for dls- abled individuals. "At the direction of the State Board of Education a request for approval of these positions was made to the Classlflcatlon Officer. This request was made in accordance with House Bill 189, Acts of the 57th Legislature, codified as Article 6252-11, V. C. S. A copy of this request to the Classification Officer and a copy of the descriptions of the jobs are attached. The Classification Officer with the advice of the c Honorable J. W. Edgar, page 2 (WW-1293) Legislative Audit Committee approved each of the posltlons enumerated above and assigned these positions to Salary Group 21. “At the direction o? the State Board of Education a request was made to the Governor for the two positions named above to be excluded from the Position Classification Plan under the provlslon of Section 2, House Bill 189, Acts of the 57th Legislature. In accordance with this request the Governor excluded each of these positions from the Position Classification Plan. Copies of the Instruments affecting these approvals are attached. “Mr. Vane Burnett was appointed to fill the new position, Investment Officer. Mr. Charles Eskridge was appointed to fill the new position, Assistant Commissioner for Vocational Rehabilitation and Special Education. “The Comptroller of Public Accounts has ref- used to pay the salary of the Investment Officer and of the Assistant Commissioner for Vocational Rehabilitation and Special Education at an annual salary rate of $11,000. “Does the Governor under the provision of House Bill 189, Acts of the 57th Legislature, have the authority to exclude a job from the Classification Plan when such a job has previously been classified and assigned a salary group number by the Classl- flcation Officer? “If the answer to the above question is In the affirmative, does the Comptroller of Public Accounts have the authority to Issue warrants from the appropriations to the Texas Central Education Agency for the payment of salaries established for these positions at an annual rate of $11,000 each?” Honorable J. W. Edgar, page 3 (WW-1293) Section 2 of House Bill 189, Acts of the 57th Legislature, Regular Session, Chapter 123, p. 238 (codified in Vernon's as Article 6252-11, Vernon's Civil Statutes) excepts from the Position Classlflcatlon Plan such persons "as may hereafter be excluded from such Position Classification Plan by executive order of the Governor or by direction of the Legislature." Section 5 of House Bill 189 also provides: II . . .Should any governing board or executive head of an agency affected by the provisions of this Act find need for the employment of a person in a class or kind of work which he believes Is not described In the Position Classification Plan, such board or executive head shall notify the Classification Officer of the facts, and such Classification Officer shall promptly nrovlde, : within the llmltatlons of the General Appro- : priatlons Act and subject to the approval of the State Auditor after obtaining the advice of the Legislative Audit Committee, either an existing or a new class description of work and a corresponding salary range which will permit such needed employment. Notification of such action shall be macje :,o the Cs:1!ptroller of Public Accounts by the ClaselficatiTn Ofricer. Nothing in this paragraph or in this Act, however, shall be so construed as to authorize an increase In the number of positions or In the amount of appro- priations as may be set forth for any such agency in the General Appropriations Act." Under the facts submitted with you request as evidenced by letters of Mr. Everett Anschutz, Classification Officer, dated February 5, 1962, to the Comptroller of Public Accounts and the approval of the Governor of the exclusion on February 15 and 16, 1962, It Is our opinion that the position of Assistant Commissioner of Vocational Rehabilitation and Special Education and the position of Investment Officer have been eucl~uded fr>m the Position Classification Plan pursuant to the above quoted provisions of House Bill 189 of the 57th Legislature. You are therefore advised that the . ... . Honorable J. W. Edgar, page 4 (WW-1293) Comptroller of Public Accounts has authority to issue warrants from the appropriation to the Texas Central Education Agency for the payment of salaries established for these positions at an annual rate of $11,000 each. SUMMARY Where the positions of Investment Officer and of Assistant Commissioner for Vocational Rehabilitation and Special Education of the Central Education Agency has been excluded from the Position Classification Plan by executive order of the Governor and by direction of the Classification Officer with the approval of the State Auditor, such positions may be paid an annual salary in excess of amounts provided for In the Position Classification Plan. Yours very truly, WILL WILSON Attorney General of Texas /GG BF John Reeves Assistant JR:kkc APPROVED: OPINION COM"TT"'E W. V. Geppert, Chairman Howard Mays Vlrgie Pulliam Fred Ward REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.