Case Information
*1 The Attorney General of Texas November 10, 1983 JIM MATTOX
Attorney General
Supreme T&x 910/674-t367 5121475-2501 Austin. P 0. BOX 12548 TX. 7*71t- Court Building [2546] Gary E. Miller, M.D. Texas Department of Mental COSlQliSSiO~S~ P. 0. Box 12668 Health and Mental Retardation Opinion No. ~~-94 Re: Salaries for persons discharging duties of 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 9151533-3464 El Paso, TX. 79905.2793 Ave.. Suite [160] the duties of an office or position as an "acting" functionary rather than as the duly appointed incumbent thereof. 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 article 6252-11, V.T.C.S., the Position Classification Act of 1961, as .uston, TX. 77002.3111 authorized by article 6813b. V.T.C.S. 7131223-5866
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 conform with the Position Classification 4309 N. Tenth. Suite B 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, with the exceptions and deferments hereafter 200 Main Plaza. Suite 400 provided . . . . (Emphasis added). San Antonio. TX. 78205.2797 5121225.4191
However, one who serves in an "acting" capacity, by definition, is not engaged in a regular employment. He performs the duties of an An Equal Opportunity/ office or position to which he does not himself claim title. See Affirmative Action Employer 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 the salary paid one serving in an 834 (N.J. Super. 1960). Thus, "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).
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 <n another classification in a higher salary group requiring higher qualifications "such as a greater skill or longer experience, and involving a higher level of responsibility." &, art. V, §le. A change in duty assignment, though only temporary, can come within the definition of a "promotion." If it does, the appropriations act provision specifies the amount that can be paid the promoted employee. Id.. art. V, Ole.
Situations in which classified employees are temporarily assigned the duties of exenpt (non-classified) positions, or where non- classified employees temporarily assume the responsibilities of other non-classified positions, are not embraced by the foregoing "promotion" definition. The general appropriations act deals with the salaries of non-classified employees in two ways: (1) either as line item appropriations for which a specific amount is indicated, or (2) as general positions for which the salary is "not to exceed" a specified amount. In neither case (except with respect to certain law enforcement positions) is a department required to pay the maximum amount specified. Id., art. V, §§Za, 2b at 6199-6200. See generally .Attorney General Opinion M-1227 (1972). our opinion that agency heads have broad discretion It is
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.
?
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.
Very truly yours J /bit
A
-JIM 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