Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN
GROVER SELLERS ATTORNEY GENERAL
Bonorable Claude I ehell Secretary of state Austin, Texas
Dear Mr. I ehell:
Opinion No. 0-8739
No: Construction of Sepate Bill No. 317, General Appropriation 49th Legislature, Items 20 and 33, Secretary of state department, with respect to the Secretary's authority to pay such additional employee in charge of paroles from the item of "Extra Help, Seasonal."
Your inquiry for an opinion upon the above subject matter is as follows:
"There is not up in the appropriation Bill a place in our office as 'Governor's Assistant in Charge of Parole', which place only pays $2310.00 per annum. Recently the man who had this place resigned, and we are unable to fill the place satisfactorily at that figure, and in view of the importance of the place in the handling of several thousand paroles, I would like to be advised on the following questions:
"(1) Would this office be authorized to set up a new place to be designated as 'Parole Supervisor'?
"(2) Would we be authorized to pay for his services at $220.00 per month payable out of our fund atyled "Seasonal Help"?
"(3) If you answer in the affirmative to the above, then would the Governor be authorized to issue a deficiency warrant in our layer when we have exhausted our 'Seasonal Help Fund'?"
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honorable Claude I ehell - page 2
The appropriation for the Secretary of state department of the General Appropriation Bill for state departments passed by the 49 th Logislature contains the following items, which are involved in your inquiry, to-wit: "20. Governor" Asa't in Charge of Paroles ..... , and "33. Extra help, seasonal .....
You have explained to us in conversations respecting the inquiry that it was not your purpose to abolish or ignore the position provided for in Item 20, but that it was your thought to appoint another employee to assist in the same work during the period of necessity therefor, and to pay such other employee, as indicated in your letter, out of Item 33. There would be no attempted augmentation of the salary provided for the Assistant mentioned in Item 20.
Item 20 does not create, nor could the Appronpitation Bill in any event create, the office or position of Governor's Assistant in charge of Paroles, by that or any other name. It is the sole function of an appropriation bill to appropriate moneys for the compensation of employees legally and factuaily necessary to the efficient operation of the department. (See our Opinion No. 0-6731, copy herewith).
Item 33 for extra seasonal help is a very broad and general authority to your Department, the only limitations beinr that such positions beine in the nature of temporary emergency needs with respect to departmental service, and the total sum available therefor, whatever the nature of the service, or the number of the assistant employees. There is no leral necessity for the giving to any additional employee performine the services as seasonal help any particular desimation. For accounting purposes it would be advisable, and perhaps necessary. to do this, however, so that perient could be made from the appropriate fund. This is matter of denartmental discretion, however.
In the general provisions included in the Departmental Aproprfation Bill at parerragh d. of guhsection (14) of section 2 is the following:
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Honorable Claude lahe11 - page 3
"Additional Employees' Compensation. Then any additional employees other than those for which specific salary appropriations have herein been made, are employed and are to be paid out of contingent appropriations, such employees shall not be paid a larger amount than that provided in the regular appropriated salaries for similar positions in such department or agency, and in the event there are no similar positions within such department, then such additional employees shall not be paid a larger amount then that provided for similar positions in other departments or agencies. " 0.0
It is our opinion that Itom '33 for extra help, seasonal, is a contingent appropriation, within the meaning of this general provision governing salaries for additional employees. From this it follows that such additional employees may not be paid a salary in excess of that prescribed for the Governor's assistant in charge of paroles.
Under Article 4351 of the Revised Civil Statutes, the Governor would be authorized to approve a deficiency claim for the payment of seasonal extra help of your Department, within the limitations of the appropriation act itself, of course. Our Opinion No. 0-2115, addressed to Governor V. Lee o'Daniel goes quite fully into the whole matter of deficiency warrants, and we are handing you herewith a copy of that opinion.
In Opinion Vo. 0-1332 this Department had before it the following inquiry: "May a department head employ an additional employee and place him on the regular regrrol', having his salary out of the contingent apronpriation, or does the contingent aprronriation comprehend a temporary or an emergency situation authorizinc the employment of additional employees for such purposes?"
We answered: "Having due regard to the context in which we find the word, and the specific authorization for the use of such funds for such purposes, we are labelled to the conclusion that the legislature has said substantially this: 'We have attentive', so far an possible, to anticipate every item of expense, which necessarily he incurred in the reeration of your department, when we realize that our
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judgment as to much matters may he inezact, from the very nature of things, and we therefore appropriate to your Department a sum of money remeral1y available for operating expenses of your Department, exeept as otherwise herein specifically limited, to take care of those employents and other expenace not herein specificatly provided for, but which may necessarily be required to enable your Department properly to function. [10]
To trurt that what we have said sufficiently answers your problem.
Very truly yours
08-48 Enol o sure