### THE ATTOR,YEY GENERAL OF TEXAS

May 29, 1987

Mr. Lawrence F. Alwin StateAuditor P. 0. Box 12067 Austin,Texas 78711 OpinionNo.JM-713

Re: Whetherprior state service in
a nonhazardous duty assignmentmay be used in calculating hazardous duty pay, and related questions

DearMr. Alwin:

You ask for an interpretation of the following provision governinghazardousduty pay for law enforcementpersonnel of specific state agencies:

All commissioned law enforcement personnel of the Department of Public Safety, all commissioned law enforcementpersonnel of the State Purchasing and General Services Commission, all commissioned security officers of the State Treasury, all commissioned law enforcement personnel of the Texas Alcoholic Beverage Commission, all law enforcement officers commissioned by the Texas Parks and Wildlife Commission, all commissioned peace officers of state institutions of higher education, and all law enforcement personnel commissioned by the Texas Department of Corrections,and all employeesor officialsof theBoard of Pardons and Paroles who have routine direct contactwith inmates of any penal or correctional institution or with administratively released prisoners subject to the board's jurisdictionare entitled to hazardous duty pay of $6 a month% fiscal year 1982 and $7 a month commencing in fiscal year 1983 and thereafter for each year of service in the respective agency, up to and including 30years in service.This hazardousduty pay shallbe in lieu of existinghazardousduty or longevitypay. (Emphasisadded).

V.T.C.S. art. 6252-20b.

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You ask the followingquestion concerningthis provision.

Under the terms of article 6252-2Ob, can prior state service in a nonhazardousduty assignmentbe utilized in calculating the amount of hazardous duty pay towhich an employee is entitled?
This statute provides that the personnel named in the provision
are entitled to hazardous duty pay of $7 a month beginning in fiscal year 1983 "for each year of service in the respective agency, up to and including 30 years in service." This language requires that all of the individual'syears of service for his agency, in nonhazardous
as well as hazardous duty assignments,be included in determining the amount of hazardous duty pay to which he is entitled. The final sentence of article 6252-20b.V.T.C.S., indicates that "hazardousduty pay,I'as defined therein, is synonymous with what has been called "longevity pay" or "hazardous duty pay" in other contexts. A review of the legislative treatment of longevity pay prior to the enactment of article 6252-20b,V.T.C.S., supportsour conclusion.
Article 6252-ZOb,V.T.C.S.,was enacted in 1979. Acts 1979, 66th Leg., ch. 211, 41, at 456. The bill which enacted article 6252-20b, V.T.C.S., repealed former article 6252-20a.which read as follows:

All commissioned law-enforcement personnel of the Department of Public Safety, all commissioned law-enforcement personnel of the State Board of Control, all commissioned law-enforcement personnel of the Texas Alcoholic Beverage Commission, all law-enforcementofficers commissionedby the Texas Parks and Wildlife Commission, all commissionedpeace officers of state institutions of higher education, and all law-enforcement uersonnel commissionedbv the Texas Department of Corrections shallbe paid as longevity-pay $4 per month for each year of service in the respective agency, up to and including 25 years in service. This longevity p y shall be in lieu of existing longevitypay. (aEmphasis added).

Acts 1975, 64th Leg., ch. 477, §I, at 1274. Before 1975, provisions authorizing longevity pay for state law enforcement officers were found in the general appropriationsact. See, e.g., Attorney General Opinion Nos. R-256, R-198 (1974); C-140 (1963); w-1152 (1961). A subcommittee of the House Committee on State Affairs reported that article 6252-20a.V.T.C.S., was new legislation for "prolonged loyal service by officers of state law enforcement agencies." Report of Sub-Committee on R.B. No. 218, before House Committee on State Affairs, Feb. 26, 1975, filed in Bill File to H.B. No. 218, 64th Leg., LegislativeReferenceLibrary.

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The Bill Analysis of the 1979 6252-20a,V.T.C.S., and replaced it statedas follows: enactment which repealed article with article 6252-20b.V.T.C.S.,

BACKGROUND INFORMATION Currently,certain commissionedlaw enforcement personnel receive as longevity pay four dollars Per month for each year of service in their respective agencies, up to and including twentyfiveyears of service.

PURPOSEOF THIS BILL
This bill would repeal the existing longevity pay statute and replace it with a hazardous duty pay statute which would provide certain commissioned law enforcement personnel with a monthly hazardous duty pay of $5 for each year of service up to and inclul

_ dinp,thirty Years of service.

_ _ (Emphasisadded).
Bill Analysis to S.B. No. 586, prepared for House Committee on State Affairs, filed in Bill File to S.B. No. 586, Legislative Reference Library. Both longevitypay and hazardous duty pay are described in terms of a monthly amount "for each year of service." The Bill Analysis does not distinguish between service in hazardous duty positions and other service for the agency. The legislationincreases the monthly supplement, lengthens the maximum period of compensable service, and substitutes "hazardous duty pay" for "longevity pay" without a change in meaning. The Fiscal Note to this legislation states as follows:

The bill, as engrossed, would increase the hazardous duty pay from four dollars to five dollars per month for each year of service, and increases the maximum compensable service period from 25 to 30 years for the law enforcement personnelof the followingagencies.

. . . FiscalNote, of April 4, 1979,Bill File for S.B.No. 586,Legislative Reference Library. Thus, the fiscal note treats the bill as increasingthe amount of supplementalpay but not changing the kind of servicerequired.

An Appropriations Act provision considered by a 1974 Attorney General Opinion based longevity pay for game wardens on "length of service in law enforcement":

It is expressly provided that the Parks and Wildlife Department pay longevity to Commissioned

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Game Wardens up to and including the grade of Captain. The amounts to be paid to each individualposition shallbe based on the length of service in law enforcementof Game Lawswithin the Department.

. . . (Emphasisdeleted).

Acts 1973, 63rd Leg., ch. 659, art. III, at 2013. Attorney General Opinion H-198 (1974) determined that it was "necessary for a commissionedgame warden to be actually engaged in enforcementof the game laws to qualify for a longevity increaseunder thisappropriation rider." Article 6252-2013. V.T.C.S.. does not place this limitationon servicewhich qualifies forhazardous duty pay.

You next ask:

Under the terms of articleV. section 2(c), of the General Appropriations Act, when an employee transfers from one state agency to another, can prior state service in a nonhazardous duty assignmentbe considered in calculating the amount of hazardous duty pay to which an employee is entitled?
Article V, section 2(c), of the current General Appropriations Act provides as follows:

C. When a state employeewho receiveshazardous duty pay for law enforcement activitiesmoves to a position in another state agencywhich entitles the employee to the samehazardous duty pay he shallbe granted credit for the total amount of state service contributing to eligibility for hazardous duty salarypayments.

Acts 1985, 69thLeg., ch. 980, art.V. 52(c),at budget 475 (V-30).
Article 6252-2Ob.V.T.C.S., expressly provides that commissioned officers of specific agencies are entitled to a certain amount of hazardous duty pay "for each year of service in the respective agency. . . .'I (Emphasisadded). The underlined languagemeans that the law enforcementofficer'shazardous duty pay is based on his years of service with the specific agency that employs him and pays his hazardous duty pay. The quoted language of article 6252-20b, V.T.C.S., may be contrastedwith language describing the entitlement of other state employees to longevity pay. Article 6813d,V.T.C.S.. provides state employees

longevity pay of a maximum of $4 per month for each year of service as an employee of the stateup to and including 25 years of service.

. . . (Emphasisadded).

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Under article 6813d.V.T.C.S., the individual'syears of servicewith the state, not merely with a particular agency of the state, are considered in determiningthe amounf of longevityhe will receive.
Section 2(c) of article V of the Current General Appropriations Act attempts to allow a state law enforcementofficer to transferhis credit for hazardousduty pay from the state agencywhere he earned it to another agency which employs him in a position entitling him to hazardousduty pay. The purpose end result of thisAppropriationsAct provision is contrary to that of article 6252-2Ob, V.T.C.S., which limitshazardousduty pay to the amount earned in serving a particular state agency.

It is well established that an AppropriationsAct provisionmay detail, limit, or restrict the use of funds appropriated in the act, but a rider to the AppropriationsAct may not conflictwith general law. See Tex. Const. art. III, 135; Jessen Associates, Inc. v. Bullock7 531 S.W.2d 593, 600 (Tax. 1975); Moore v. Sheppard, 192 S.W.2d 559 (Tax. 1946);Attorney General Opinion Nos. m-407, JM-343 (1985);V-1254 (1951). The quoted rider found at articleV, section 2(c) of the current Appropriations Act is inconsistentwith article 6252-2Ob,V.T.C.S.. and is therefore invalid. A version of this rider appeared in the 1973 General Appropriations Act at a time when longevityand hazardousdutypay were controlledby theAppropriations Act. Acts 1973, 63rd Leg., ch. 659, art. V, $2(b), at 2196. This rider predates articles 6252-20a and 6252-20b.V.T.C.S., and was not deleted or rewritten to conform to those general laws.

You finally ask:

Do the more restrictiveAppropriationsAct riders of the Parks andWildlife Department and Alcoholic BeverageCommissionconflictwith thegeneral law?

The followingrider is appended to the appropriationto the Parks andWildlifeDepartment:

It is expressly provided that the Parks and Wildlife Department pay hazardous duty pay to all commissioned law enforcement personnel of the department. The amounts to be paid to each individual position shall be based on the length of service in law enforcementwithin the department at the rate of Seven Dollars ($7)per month for each year of service up to and including thirtyyears of service.

Acts 1985, 69thLeg., ch. 980, art. I, rider 6, at budget 154 (I-147). This rider attempts to base hazardous duty pay on "the length of service in law enforcement within the department.

. . ." It is inconsistentwith article 6252-20b,which requireshazardous duty pay

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to be based on all service in the agency. To the extent the rider conflictswith article 6252-2Ob.V.T.C.S., it is invalid.

The followingrider applies to theAlcoholicBeverage Commission:

Funds appropriatedabove includehazardous duty pay and may be paid to any of the following commissionedlaw enforcementpersonnel:
Chief, Enforcement andMarketing Practices Assistant Chief, Enforcement andMarketing Practices District Supervisor AssistantDistrict Supervisor SeniorAgent Agent III Agent II Agent I
Hazardous duty pay shall be based on length of service in the commissioned law enforcement positions listed above, and shall be paid at a rate of Seven Dollars ($7)per month per year for each year of service through thirty (30) years of service.

It is furtherprovided that individuals in the following classified positions who are receiving hazardous duty pay as of August 31. 1981, shall continue to receive hazardous duty pay for the biennium ending August 31, 1987. Individuals hired for the followingpositions afterAugust 31, 1981, are not entitled to receive hazardous duty pay:
Port of Entry Supervisor Port of Entry Inspector II Port of Entry Inspector I SupervisingAuditor II SupervisingAuditor I Auditor III Auditor II Auditor I AssistantDirector,Auditing and Tax Reporting SeniorTax Auditor (Emphasisadded).

Acts 1985, 69th Leg., ch. 980. art. I, rider 7, at budget 29 (I-22). This provision, like the rider to the Parks and Wildlife appropriation, attempts tobase hazardous duty pay on length of service in law enforcementpositions. To the extent the rider does so, it is invalid because it is inconsistentwith general law.

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The above rider is inconsistentwith article 6252-20b,V.T.C.S., in another way. The general law provides that "all commissioned law enforcementpersonnelof theTexas AlcoholicBeverage Commission

. . . are entitled to hazardous duty pay. . . .* V.T.C.S. art. 6252-20b. Article 6252-2Ob. V.T.C.S.. gives commissioned law enforcement personnel of the Alcoholic Beverage Commission a right to hazardous duty pay while the rider appears to make it discretionary with the agency. Finally, the Alcoholic Beverage Commission rider lists specific commissioned law enforcement personnel who may receive hazardous duty pay and certain classified employeeswho receive or do not receive hazardous duty pay depending on their employment. We do not know if this list includes all the commissioned law enforcement personnel of the Alcoholic Beverage Commission. See Attorney General Opinion H-198 (1974). Nor do we know if the classified positions listed are all law enforcement positions or if the responsibilities attached to those positions have changed so that they no longerwill be law enforcrmenc positions after the dates stated in the rider. However, we can conclude that the rider is inconsistentwith article 6252-2Ob, V.T.C.S., and therefore invalid, to the extent it denies hazardous duty pay to persons who are commissioned law enforcement officers of the agency or provides it to persons who are not law enforcementofficers.

SUMM~ARY

Article 6252-20b,V.T.C.S.,provideshazardous duty pay to law enforcement personnel of specific state agencies, based on all service for that agency. Article V, section 2(c) of the current GeneralAppropriationsAct, which purports to allow transfer of credit for hazardous duty pay from one agency to another, is invalidbecause it is inconsistent with article 6252-20b. The riders on hazardous duty pay found in the appropriations to the Parks andWildlifeDepartment and theAlcoholic Beverage Commission are invalid to the extent they conflictwith article 6252-20b.V.T.C.S.

JIM MATTOX Attorney General of Texas

JACK HIGHTOWER FirstAssistantAttorney General

MARY KELLER ExecutiveAssistantAttorneyGeneral

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JUDGE ZOLLIE STEAKLEX SpecialAssistantAttorneyGeneral

RICK GILPIN Chairman,Opinion Committee
Preparedby SusanL. Garrison AssistantAttorneyGeneral

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