Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
March 16, 1981
MARK WHITE
Attorney General
Honorable John J. Kavananh. M.D. Ooinion No. NW-305
Commissioner
Texas Department of Mental Health Re: Whether the Department of
and Mental Retardation Mental Health and Mental Retarda-
P. 0. Box 12668 tion may change classified
Austin, Texas 76711 employees to hourly employees and
pay them on a semi-monthly basis
Dear Dr. Kavanagh:
You have asked whether the Texas Department of Mental Health and
Mental Retardation has the authority to remove the majority of its salaried
employees from the State Position Classification Plan by converting them to
hourly employees and, if not, what legal authorization would be required for
such a conversion. You ask further whether MH/MR has the authority to pay
the majority of its employees on a biweekly basis rather than on a monthly
basis if those employees are converted to hourly employees.
Section 2 of article 6252-H, V.T.C.S., the Position Classification Act,
provides, in pertinent part, that:
All regular, fulptime salaried employments within
the departments and agencies of the State. . . shall
conform with the Position Classification Plan. . . and
with the salary rates and provisions of the Appropria-
tions Act. . . .
. . . .
Specifically excepted from the Position Classifi-
cation Plan. . . are. . . hourly employees, part-time,
and temporary employees; and such other positions in
the State Government as have heretofore been or as
may hereafter be excluded from such Position Clas-
sification Plan by executive order of the Governor or
by direction of the Legislature.
The General Appropriations Act reflects the fact that a very large
number of oersons are emoloved bv the deoartment as full-time, classified
employees. ‘See General A’ppiopriations Act, Acts 1979, 66th Leg:, ch. 643,
art. 11, S20, a-2556.
P. 972
Honorable John J. Kavanagh - Page Two (MW-305
An administrative agency has only those powers expressly conferred by statute or
derived from express powers, Railroad Commission v. Red Arrow Freight Lines, 96
S.W.2d 735 (Tex. Civ. App. - Austin 1936, writ refd). An Appropriations Act rider
applicable to the department gives it some authority to use appropriations for
classified positions to pay hourly employees:
It is further provided that appropriations for salaries of
classified positions may be used to pay the wages of hourly
workers when the utilization of such personnel is in the best
interest of an economical and efficient program.
General Appropriations Act, Acts 1979, 66th Leg., ch. 643, art II, S2(4), at 2543. This
larrguage gives the agency some limited authority to shift funds from classified to
hourly positions. We do not believe it empowers the Department of MH/MR to remove
the majority of its salaried employees from the State Position Classification Plan by
converting them to hourly employees. In order to exercise such comprehensive
authority the department would need express legislative authorization or an executive
order from the governor.
Article 6626, V.T.C.S., provides that, “Annual salaries provided for in this title
shall be paid monthly on warrants drawn by the Comptroller or the Treasurer.” The
word “title” in article 6626, V.T.C.S., refers to title 117, which concerns the salaries of
state officers and employees. The General Appropriations Act provides, in pertinent
part, that:
All annual salaries appropriated by this Act are for full-time
employment unless specifically designated as part-time or other
and shall be paid in twelve (12) equal monthly installments ...
Art. V, S2(a). Classified employees are annual employees and thus are subject to this
provision. See General Appropriations Act, Acts 1979, 66th Leg., ch. 643, art. V, .Sla,
at 2892. Wxelieve, however, that hourly compensation is to be distinguished from sn
annual salary, and that persons receiving hourly salaries are not subject to the above
limitations on annual salaries. They may therefore be paid on some other basis, such
as biweekly payment.
SUMMARY
The Texas Department of Mental Health and Mental
Retardation does not have the power to remove the majority of
its salaried employees from the State Classification Plan by
converting them to hourly employees. Such authority must be
specifically granted to the Texas Department of Mental Health
and Mental Retardation by the legislature or by executive order
of the governor. The Texas Department of Mental Health and
Mental Retardation does have the authority to pay employees
receiving hourly compensation on a biweekly or semi-monthly
basis.
P. 973
. -
Honorable John J. Kavanagh - Pege Three (MW-305)
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY Ill
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
Susan L. Garrison, Chairman
Jon Bible
Lucius Bunton
Rick Gilpin
p. 974