# The Attorney General ofTexas

March 22, 1982 MARK WHITE Attorney General

Supreme Court Building P. 0. em 12549 Austin, TX. 76711. 2546 512/475-2501 Telex 9101674-1367 Telecopier 5121475-0266

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An EqualOpportunity/ Affirmative Action Employer Mr. Kenneth El. Ashworth CoordinatingBoard opinionNo.MW-459 Texas College 8 University System Re: Award of merit Pay P. 0. Box 12788,Capitol Station increases by coordinating Austin, Texas 78711 board DearMr. Ashworth: You ask whether the Coordinating Board of the Texas College and University Systemmay use appropriatedfunds to grantmerit bonuses in lieu of merit base salary increases. That is, whether the board may recognize superiorperformanceby the award of a one-time payment or payments over a limited number of months rather than by a permanent increase inbase salary. The board's appropriation is found in article III of the 1981-82 General AppropriationsAct. Acts 1981, 67th Leg., ch. 875, at 3725~. Article III, section 22 of that act applies to "agencies of higher education"not coveredby section 1, articleV of the act. Section 22 provides inpertinentpart:

Funds are provided in the appropriationsmade to those agencies covered by this section in sufficient amounts to permit annual salary increasesas follows: (a) All regular employees, excluding ranked faculty in the ranks of Professor, Associate Professor, Assistant Professor and Instructor in the general academic universities; professional positions in theTexasA & M Services;and faculty and professional positions in the health science centers and other medical education programs, shall receive a minimum annual salary increaseof 14.3% in fiscal 1982 and 8.7% in fiscal 1983. Such increase shall be in addition to the salary rates as of January 31, 1981, and shall apply to only those salaries paid from funds hereinabove appropriated.

p. 1596Mr. Kenneth H. Ashworth - Page 2 (Mw-459)

(b) Funds are provided in the appropriations to agencies covered in this section to permit salary increase in fiscal 1982 of 17.06% and 8.7% in fiscal 1983 for all employees excluded by the preceding section. Salary increases for these employees are to be awarded on the basis of merit and performance in accepted activities including teaching, research and service. Such increases, if any, are in addition to the salary rates as of January 31, 1981, and shall apply to only those salariespaid from fundshereinaboveappropriated. It is expressly provided that institutional administratorsmay grantmerit salary increases to employees whose job performance and productivity is consistently above that normally expected or required. (Emphasisadded). Article V, section 1 of the General AppropriationsAct does not apply to the board. That section speaks specifically to the issue of merit pay increases for covered agencies. The board is not, however, exempt from the terms of article V. section 2 of the act. Subsection a of that sectionprovides that:

All annual salaries appropriated by this Act... shall be paid in twelve (12) equal monthly installments, except as otherwise provided in Article II of thisAct. Cf. General Appropriations Act, Acts 1981, 67th Leg., ch. 875, art. III, §8c, at 3719 (ninemonth employees). The Texas SupremeCourthas noted that "a salary is a fixed compensation for regular work." Wichita Countyv. Robinson, 276 S.W.2d 509, 513 (Tex. 1955); see also Attorney GeneralOpinionH-1223 (1978). Webster's Third International Dictionarydefines salary as "fixed compensationpaid regularly...for services...." Cf. General AppropriationsAct, Acts 1981, 67th Leg., ch. 875, art.Vxd, at 3791 (meritsalary increases tobe given on a monthly basis). Article III, section 22 speaks of "annual salary increases;" while article V, section 2a requires that salaries be paid in equal monthly installments. We believe this statutory language, with the judicial definition of salary, requiresus to conclude that the board may not grant one-time bonuses in lieu of merit increases to base salary. The board must either maintain existing salary levels or increasebase pay in recognitionof exceptional service.

p. 1597. Mr. Kenneth H. Ashworth - Page 3 @fW-45g)

SUMMARY The provisions of the General Appropriations Bill for 1981-82 fiscalyears preclude thepayment of one-timemerit pay bonuses.

JOHNW. FAINTER,JR. FirstAssistantAttorney General RICHARDE. GRAY III ExecutiveAssistantAttorney General Preparedby Carl Glaze AssistantAttorney General APPROVED: OPINION COMMITTEE SusanL. Garrison,Chairman Jon Bible Rick Gilpin PatriciaHinojosa ShawnJamail JimMoellinger

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