Untitled Texas Attorney General Opinion

1
c.
The Attorney General of Texas
March 28, 1986
JIM MATTOX
Attorney General
Supreme Court Building HonorableAnn W. Xchards OpinionNo. m-459
P. 0. BOX 12548 Treasurerof the 'stateof Texas
Austin. TX. 78711. 2549
51214752501
P. 0. Box 12608.GlpitolStation Ue: Whether awards to state
Telex 9101874.1387 Austin,Texas 7:3711 employees under the State
Telecopier 51Z475-0288 EmployeeIncentiveProgramcon-
travenearticleIII, section44,
714 Jackson, Suite 700
of the Texas Constitution
Dallas, TX. 752024506
2141742-8944 Dear Ms. Richards:
You request legal advice on implementingthe State Employee
4824 Alberta Ave.. Suite 180
Incentive Program, which was created by article 6252-28, V.T.C.S.
El Paso, TX. 799052793
915/533-3484
See Acts 1985, 69th Leg., ch. 873, at 6421. The statute creates the
State EmployeeInclentiveCommission,consistingof the state auditor,
the comptroller,,rlle
treasurer,the administratorsof various agencies
1001 Texas, Suite 700 and three members of the public. Section 4 of article 6252-28,
Houston, TX. 77002.3111 V.T.C.S..provide:3in part:
712&?23-58ea
The ~commissionshall develop policies and
808 Broadway, Suite 312 organize procedures to implement a statewide
Lubbock, TX. 79401.3479 program to reward state employees in the manner
808,747.5238 providedby this Act for employeerecommendations
that reduce.state expenditures,increase state
4309 N. Tenth, Suite B reventm3!, or improve the quality of state
McAllen. TX. 78501-1885 service:r..
5121682.4547
Sec. 4(a). Other provisionsestablishproceduresfor the submission,
2w MaIn Plaza, suite 400
evaluation,and adoption of employee recommendations.V.T.C.S. art.
San Antonio, TX. 782012797 6252-28, 097-10. The commissionmay grant a monetary bonus to an
51212254191 employeewhose suggestionis implementedif it produces savings that
can be computedu:iinga cost-benefitanalysis. Id. 92. Benefitsthat
cannot be computed or intangible savings maybe recognizedby a
An Equal Opportunity/
Affirmative Action Employer
nonmonetarycertiiicateof appreciation.Id. Section2(e) states the
formulafor compuzingthe amount of a bonu=warded under the program:
(e) An employee whose recommendationresults
in a net annual savings,or increasein revenues,
of $100 or more is eligible for a bonus of 10
percent of the net savings,or revenue increase,
up to a maximum award of $5,000. An employee
whose ::trcommendationresults in a net annual
savings, or increase in revenues, of less than
p. 2097
I
HonorableAno W. Richards- 'Page2 (JM-459) .
I
$100 is not eligible for a bonus but is eligible
for a certificateof appreciation.
You first ask whether the monetary awards authorizedby article
6252-28,V.T.C.S.,are constitutional under articleIII. section44 of
the Texas Constitution.
ArticleIII, section44 of the constitutionprovides:
The Legislature shall provide by law for the
cosmensationof arL officers, servants,agents and
public contractors. . . but-shall not-grant
- extra
compensationto .z*y officer, agent, servant. or
Public contractor+ after such public service shall
have been performed or contract entered into, for
the performanceof the same; nor grant, by appro-
priation or otherrise,any amount of money out of
the Treasury of tGc State, to any individual,on a
claim, real or pritended,when the same shall not
have been provide? for by pre-existinglaw. . . .
(Emphasisadded).
You are concerned about the constitutionalprohibition against
grantingextra coupensatior,
to an officerafter the serviceshave been
performed.
Article III, section 44, does not prohibit the payment of
benefits to employees as en element of compensationor a tern of
employment. & Byrd v. City of D;E8::6 $.$ ::t6J,T.'".
1928);
Attornev General Ouinions H-1303 Article
6252-28, V.T.C.S.,'does not permit an.&ployee to receive extra
compensationfor performingthe duties of his state anployusnt,as
demonstratedby the exclusi,ans
found in section6 of the statute:
(a) Each full-time state employee is eligible
to participateir.the programexcept an employee:
(1) who has authority to implement the
recommendation
being made;
. . . .
(3) whose job descriptionincludes respon-
eibilitpfor cost analysis,efficiencyanalysis,
savings iuplemcntation,or other related pro-
grams within ibe euployee'sagency;
(4) involveidin, or who has access to,
agency resear,chand development programs, if
that informationis used as the basis of the
recosmendation;
or
p. 2098
, HonorableAnn W. Richards- Page 3 (J&459)
(5) whose job description includes
developing the type of change in the agency
administratior.that is recommended by the
recommandstior.. . .
V.T.C.S.art. 6252-28,56. The statuteinsteadadds a new term to an
eligibleperson'semploymentrelationshipwith the state, enablingan
employeeto receivecompensationfor performingintellectual work that
is beyond the scope of his employmentresponsibilities and that has a
concrete monetary value to the state. Merely by submitting a
recommendation, an employel:assigns to the state all claims based on
the recommendation.inclu~dingpatent claims, copyright claims,
trademarkclaims,and other:analogousclaims. V.T.C.S. art. 6252-28,
IlO( Thus, the state may receive some consideration from
participants in the State Employees Incentive Program whose
suggestionsare not implemented.
Attorney General 0p::nionWW-790 (1960) determined that an
employee awards program of the State Highway Commission did not
violate article III, secizion44 of the Texas Constitution. The
AppropriationsAct authorizedthe HighwayDepartmentto give employees
serviceaward pins and certificatesas compensationfor longevityof
serviceand safety award pins and certificatesfor safe operationof
state equipment. Acts 195'):,
56th Leg:, 3d~C.S., ch. 23, at 590; see
also Acts 1985, 69th Leg.. ch. 980, art. V, 511, at 7768 (simi~
vision in currentapproFriation8 act). The opiniondeterminedthat
article III, section 44 of the constitutiondid not prohibit the
awards,statingas follows:
Just becausethe awardsare based on the lengthof
the employee'sservice, it does not follow that
the awards are 'additionalcompensation'in pay-
ment for past serviceafter such servicehas been
performed. It !.e within the discretionof the
Legislatureto dd?terminethat a state employeeis
more valuable to the State today because of his
uperience gained by long and faithfulpast per-
formance.
Attorney General Opinion WW-790 (1960); see also Attorney General
Opinion H-336 (1974). In our opinion, the legislaturemay also
compensate employees for valuable suggestionspursuant to article
6252-28,V.T.C.S.,without violatingarticle III, section 44 of the
Texas Constitution.
We will deal with you::secondand third questionstogether. You
ask whether funds have been appropriatedto the State Employees
Incmtive Commissionfor the 1986-1987bienniumto make awards. If no
funds are appropriated ta make awards under the State Employee
IncentiveProgram,you wish to know whether a state agency,which has
the authorityto accept donationsor gifts, may make awards on behalf
p. 2099
HonorableAnn W. Richards- Page 4 (JM-459)
of the commissionto state employeesbased on the recommendationof
the commission.
providesin part:
Article6252-28.V.T.C.!;.,
Sec. 2. . . .
(b) From fund% appropriatedfor this purpose,
the State EmployesIncentiveCar
mission may grant
awards to eligi6le state emnlovees who make
recommendationsi%at reduce state expenditures,
increasestate revenues,or Improvethe qualityof
state services.
. . . .
Sec. 4. (a) The commission shall develop
policies and orgakize procedures to implement a
statewideprogrsm:toreward state employeesin the
manner proved by this Act for employeerecommenda-
tions that red& state exuenditures.increase
state revenues,or improve 135 S.W.2d 687 (Tex. 1940).
Moreover, donated funds a;? also subject to su appropriationsact
rider which prohibits the transfer of appropriatedfunds from one
ageucy to another unless the transfer Is specificallyauthorizedby
the AppropriationsAct. Acts 1985, 69th Leg., ch. 980, art. V, 563,
at 7792. The arrangewent'youhave inquiredabout is not preciselya
transferof funds, but it 1s very similar in effect to a transferof
appropriatedfunds from anotherstate agency to the commission.
Article III, sectiontilt of the Texas Constitutionprohibitsthe
appropriationof money fmm the Treasury unless pre-existinglaw
authorizesthe appropriation. Austin Natioaal Bank v. Sheppard,71
S.W.2d 242 (Tex. 1934). Article 6252-28, V.T.C.S., authorizes an
appropristion to the commissionfor awardsunder the incentiveprogram
it administers;the commis3:Lon may grant awards "[flrom funds appro-
priated for this purpose. . . ." V.T.C.S.art. 6252-28.52(b). Other
state agencies may assist the commissionto provide for effective
implementation of the incentiveprogram,and each state agencyhas an
agency coordinatorwith some responsibility for the functioningof the
programwithin his agency. Set V.T.C.S. art. 6252-28, 5$4(d).5, 7.
Article 6252-28,V.T.C.S.,does not, however,authorizean appropria-
tion to any agency other than the commissionto financethe awards to
state employees. We are unaware of another state agency with general
law authorityto m&s awards to employeeschosenby the State Employee
Incentive Commission. Std.teagmcies have some authority to make
awards as additionalcomptmsationto their own employees,sea Acts
1985, 69th Leg., ch. 980, art. V, $11, at 7768; Attorney-&era1
OpinionWW-790 (1960),but we do not know of an agency other than the
p. 2102
HonorableAnn W. Richards- Page 7 (JM-459)
commissionwith authoriry'10make awards to employeesof any and all
state agencies.
Administrativeagencies have only those powers expressly con-
ferred on them by statute, and those necessarilyimpliedfrom express
powers. Railroad Commiss~.on of Texas v. Red Arrow Freight Lines,
Inc., 96 S.W.Zd 735 (Tex. Eiv. App. - Austin 1936, writ ref'd). The
legislaturehas expresslyconferredupon the commissionthe authority
to receivesoorooriatious
_. _ under the State Emulovees
. . IncentiveProgram.
and the commissionmay not transferthis authorityto anotheragency;
See Moody v. Texas Water C~mlmission,373 S.W.2d 793 (Tex. Civ. App. -
GLn 1963,writ ref'd n.r,e.)(governmantal powersmust be exercised
by body delegatedby law and cannotbe delegatedto others).
SUMMARY
The monetary awards authorizedfor the State
Employees Incentive Program by article 6252-28,
V.T.C.S., do not ,violatearticle III, section 44
of the Texas Conistitution.No funds have been
appropriated to the State Employees Incentive
Commissionfor t1,e1986-1987bienniumto make such
awards. Another state agency may not spend
donated funds to finance awards made by the
commissionto sta,teemployees.
.+?.JZh
MATTOX
AttorneyGeneralof Texas
JACK HIGHTOWER
First AssistantAttorneyGf:neral
MARY KELLER
ExecutiveAssistantAttornc:y
General
ROBERT GRAY
SpecialAssistantAttorneyG~eneral
RICK GILPIN
chai-, opinioncommittee:
Preparedby Susan L. Garrir,aa
AssistantAttorneyGeneral
p. 2103