Untitled Texas Attorney General Opinion

Honorable Robert S. Calvert Opinion No. M- 779
Comptroller of Public Accounts
State of Texas Re: Questions relating to the
Austin, Texas provisions of Article
6252-11, Vernon's Civil
Statutes, and riders in
the General Appropriations
Act concerning State em-
ployees' position classifi-
Dear Mr. Calvert: cation.
Your request-for an opinion on the above subject matter
questions whether the conclusions reached in Attorney General's
Opinion M-706 (1970) result in the violation of Section 1 of
Article II of the Constitution of Texas, dealing with the separa-
tion of powers between the three branches of government.
Your request for an opinion also questions whether the
provisions of Sections le(l), le(2) and lm of Article V of House
Bill 2, Acts 61st Legislature, 1969, 2nd Called Session, pages
623, 981, 1009-1010, the General Appropriations Bill, are in
conflict with the general law.
In Attorney General's Opinion M-706 (1970) it was held,
pursuant to the provisions of Article 6252-11, Vernon's Civil
Statutes (the Position Classification Act of 1961) and the riders
to the current General Appropriations Act enacted pursuant thereto
(H.B. 2 supra) that:
"State employees under the classification
system may be reclassified downward, without
change in duty assignment, without a mandatory
reduction in rate of pay, not to $xceed step
7 rate of the lower salary group.
Article 6252-11, Vernon's Civil Statutes, provides in
part as follows:
'Sec. 2. All regular, full-time salaried em-
ployments within the departments and agencies Of
the State specified in Article III, and the Central
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Hon. Robert S. Calvert, page 2 (M-779)
Education Agency, Deaf and Blind Schools In Article
IV, and all such State employments in positions
other than for Judges, District Attorneys, and
Assistant District Attorneys specified in Article
I of the biennial Appropriations Act, shall con-
form with the Position Classification Plan here-
inafter described and with the salary rates and
provisions of the applicable Appropriations Act
commencing with the effective date of this Act,
with the exceptions and deferments hereafter pro-
vided in this Section.
11
. . .
"Sec. 4. Commencing with the effective date
of this Act, all regular full-time salaried employ-
ments with the exceptions and deferments specified
hereinabove shall be.made only in conformity with
the classes of work described in such Position
Classification Plan, and under the titles au-
thorized by such Plan. The State Auditor shall
examine or cause to be examined in periodic post-
audits of expenditures of State departments and
agencies, and by such methods as he deems appro-
priate and adequate, whether employments have
been made in accordance with the provisions of
this Act, and shall report the facts as found to
the Governor, the Comptroller, and the Legis-
lative Audit Committee,
II
. . .
"Sec. 6. . . .
"When exceptions to or violations of the
Position Classification Plan or of prescribed
salary ranges are revealed by personnel audits,
the Classification Officer shall notify the agency
head in writing and specify the points of non-
conformity or violation. The executive head of
such agency shall have reasonable opportunity
to resolve the exception or end the violation by
reassigning the employee to another position title
or class consistent with the work actually per-
formed, by changing the employee's title or
salary rate to conform to the prescribed Classifica-
tion Plan and salary range, or.by obtaining a'
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Hon. Robert S. Calvert, page 3 (M-779)
new class description of work and salary range
to correct the exception or violation." (Emphasis
added.)
Pursuant to the provisions of Article 6252-11, the
Legislature in the General Appropriations Act establishes a
Position Classification Plan detailing salaries of employees
in classified positions, detailing classified positions and
making provisions for reclassifications, specifically requiring
that such reclassifications shall comply with the requirements
of the Classification Act.
You are therefore advised that the provisions of House
Bill 2, Acts 61s.tLeg., 1969, 2nd C.S., relating to classification
of State employees do not amend, repeal or modify the provisions of
Article 6252-11, Vernon's Civil Statutes. On the contrary, the
provisions of Article 6252-11 constitute the pre-existing law for'
the classified salaries contained in the General Appropriations
Act and riders governing their expenditures.
We will now discuss whether the duties prescribed by
law for the Position Classification Officer, the State Auditor,
the Legislative Audit Committee, and other officials charged with
the duty of prescribing and carrying out the Position Classification
Plan, violate the provisions of Section 1 of Article II of the Con-
stitution of Texas.
Section 1 of Article II of the Constitution of Texas pro-
vides:
'Section 1. The powers of the Government
of the State of Texas shall be divided into three
distinct departments, each of which shall.be con-
fided to a separate body of magistracy, to wit:
Those which are Legislative to one; those which
are Executive to another, and those which are
Judicial to another; and no person, or collection
of persons, being of one of these departments,
shall exercise any power properly attached to
either of the others, excepk in the instances
herein expressly permitted.
A fundamental principle of American constitutional
jurisprudence is expressed by the above quoted provisions. The
three departments of government are coordinated with and independ-
ent of each other, and none can enlarge, restrict or destroy the
powers of the other. Lytle v, Halff, 75 Tex. 128, 12 S.W. 610
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Hon. Robert S. Calvert, page 4 (M-779)
(1889); Houston Tap Ry. Co. v. Randolph, 24 Tex. 317 (1859).
This, however, does not vrevent the Legislature from delegating
to other officials auasi~leaislative and auasi-ludicial oowersl
S.W.2d 302 (i935); Rail?
z,
369 s.w12ti b27 (Tex.Sup. i963); X.
SUP. 1957).
In view of the foregoing authorities, it is our opinion
that the duties prescribed by the Legislature on the Position
Classification Officer, the State Auditor and the Legislative
Audit Committee by the provisions of Article 6252-11, Vernon's
Civil Statutes, and the riders in the General Appropriations Act
relating to the Position Classification Plan constitute lawfully
delegated powers and are not in violation of Section 1 of Article
II of the Constitution of Texas.
SUMMARY
The duties prescribed by the Legislature on
the Position Classification Officer, the State
Auditor and the Legislative Audit Committee by the
provisions of Article 6252-11, Vernon's Civil
Statutes, and the riders in the General Appropria-
tions Act relating to the Position Classification
Plan, constitute lawfully delegated powers and are
not in violation of Section 1 of Article II of the
Constitution of Texas.
The riders in the current General Appropria-
tions Act relating to the Position Classification
Plan for State employees do not amend, modify or
repeal Article 6252-11, Vernon's Civil Statutes,
the Position Classification Act of 1961, the pre-
existing law for the Position Classification Plan
contained in the General Ap roprfations Act.
1'
Ve/vi? truly yzurs,
Hon. Robert S. Calvert, page 5 (M-779)
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMI'ITEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Houghton Brownlee
Bob Flowers
Dick Chote
Ralph Rash
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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