Untitled Texas Attorney General Opinion

The Attorney General of Texas
November 10, 1983
JIM MATTOX
Attorney General
Gary E. Miller, M.D. Opinion No. ``-94
Supreme Court Building
P 0. BOX 12548
COSlQliSSiO~S~
Austin. TX. 7*71t- 2546 Texas Department of Mental Re: Salaries for persons
5121475-2501 Health and Mental Retardation discharging duties of
T&x 910/674-t367 P. 0. Box 12668 positions as "acting"
Telecopier 5121475.0266
Austin, Texas 78711 holders thereof
714 Jackson, Suite 700
Dallas. TX. 75202-4506 Dear Dr. Miller:
2141742-8944
You have asked about the salary to be paid someone who discharges
4024 Alberta Ave.. Suite 160
the duties of an office or position as an "acting" functionary rather
El Paso, TX. 79905.2793 than as the duly appointed incumbent thereof.
9151533-3464
The salaries for most employees and officers of the state of
Texas are fixed by the biennial appropriations act in conjunction with
r‘?l Texas, Suite 700
.uston, TX. 77002.3111
article 6252-11, V.T.C.S., the Position Classification Act of 1961, as
7131223-5866 authorized by article 6813b. V.T.C.S.
Section 2 of the Position Classification Act specifies:
806 Broadway, Suite 312
Lubbock. TX. 79401.3479
All regular, full-time salaried employments within
6061747.5236
rcertain agencies and departments appropriated
money by the general appropriations act] shall
4309 N. Tenth. Suite B conform with the Position Classification
McAtlen. TX. 7B501.1SB5 Plan . . . and with the salary rates and
5121662-4547
provisions of the applicable Appropriations Act
commencing with the effective date of this Act,
200 Main Plaza. Suite 400 with the exceptions and deferments hereafter
San Antonio. TX. 78205.2797 provided . . . . (Emphasis added).
5121225.4191
However, one who serves in an "acting" capacity, by definition,
An Equal Opportunity/ is not engaged in a regular employment. He performs the duties of an
Affirmative Action Employer office or position to which he does not himself claim title. See
State Bank of Williams V. Gish, 149 N.W. 600 (Iowa 1914); State ex rel
Gossett V. O'Grady, 291 N.W. 497 (Neb. 1940). The term connotes a
temporary designation, rank or position. See Pellecchia v. Mattia. 1
A.Zd 28 (N.J. 1938); Capibianco V. Civil Service Commission, 158 A.Zd
834 (N.J. Super. 1960). Thus, the salary paid one serving in an
"acting capacity" need not conform to the Position Classification Plan
unless some statute other than article 6252-11 requires it. SIX?
Attorney General Letter Advisory No. 1 (1973). -Cf. Attorney General
Opinion W-1317 (1962).
p. 400
Dr. Gary E. Miller - Page 2 (JM-94)
Article 6813b, V.T.C.S., does not expressly refer to the Position
Classification Plan, but it does specify that
all salaries of all State officers and State
employees, including the salaries paid any
individual out of the General Revenue Fund, shall
be in such sums or amounts as may be provided for
by the Legislature in the biennial Appropriations
Act.
The current general appropriations act does not speak directly of
salaries to be paid parsons temporarily discharging responsibilities
in an uactingu capacity. It does state, however, that a "promoted"
employee is to receive an increased salary, Acts 1983, 68th Leg., ch.
1095, art. V, §le, at 6196, and states that any classified employee
may, during emergencies or other special circumstances, be temporarily
assigned to other duties for periods not to exceed three months. Id.,
art. V. §lk, at 6197.
The appropriations act defines a promotion as a change in duty
assignment within an agency from a position in one classification to a
position Id., art. V, §§Za, 2b at 6199-6200. See generally
.AttorneyGeneral Opinion M-1227 (1972).
It is our opinion that agency heads have broad discretion
concerning the salaries to be paid the occupants of such positions,
whether permanent or "acting," and that no definitive answer to your
question can be given with respect to them. The only certainty is
that the persons serving in an "acting" capacity may not be paid more
than the legislature designates as the maximum for the position
filled.
?
p. 401
Dr. Gary E. Miller - Page 3 (JM-94)
The appropriations act provision may be illustrative of a general
policy that persons temporarily promoted ought to be compensated on
the scale ordinarily applied to the duties they temporarily discharge,
cf. Tex. Const., art. IV, 916 (lieutenant governor temporarily serving
as governor), but there is no law of which we are aware that requires
it for non-classified positions in state government.
-SUMMARY
Persons in classified positions temporarily
promoted to discharge the duties of another
classified position as an "acting" functionary are
entitled to a salary increase as specified in the
general appropriations act. Persons who serve in
an "acting" capacity with respect to positions
exempt from the Position Classification Act may
not be paid more than the maximum amount for the
position specified in the appropriations act, but
nay be paid less at the discretion of the agency
head.
J /bit
Very truly yours
-JIM
A
MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood
p. 402