THE ATTOR,YEY GENERAL 

OF TEXAS 

May 29, 1987 

Mr. Lawrence F. Alwin 

State Auditor 

P. 0. Box 12067 

Austin, Texas 78711 

Opinion No. JM-713 

Re: Whether prior state service in 

a nonhazardous duty assignment may 

be used in calculating hazardous 

duty pay, and related questions 

Dear Mr. Alwin: 

You ask for an interpretation of the following provision 

governing hazardous duty pay for law enforcement personnel of specific 

state agencies: 

All commissioned law enforcement personnel of 

the Department of Public Safety, all commissioned 

law enforcement personnel 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 employees or officials of the Board 

of Pardons and Paroles who have routine direct 

contact with inmates of any penal or correctional 

institution or with administratively released 

prisoners subject to the board's jurisdiction are 

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 30 years in service. This hazardous duty 

pay shall be in lieu of existing hazardous duty or 

longevity pay. (Emphasis added). 

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

p. 3304 
Mr. Lawrence F. Alwin - Page 2 (JM-713) 

You ask the following question concerning this provision. 

Under the terms of article 6252-2Ob, can prior 

state service in a nonhazardous duty assignment be 

utilized in calculating the amount of hazardous 

duty pay to which 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's years 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 "hazardous duty 

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., supports our 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-enforcement officers commissioned by 

the Texas Parks and Wildlife Commission, all 

commissioned peace officers of state institutions 

of higher education, and all law-enforcement 

uersonnel commissioned bv the Texas Department of 

Corrections shall be 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 

longevity pay. (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 appropriations act. 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., 

Legislative Reference Library. 

p. 3305 
Mr. Lawrence F. Alwin - Page 3 (JM-713) 

The Bill Analysis of the 1979 

6252-20a, V.T.C.S., and replaced it 

stated as follows: 

enactment which repealed article 

with article 6252-20b. V.T.C.S., 

BACKGROUND INFORMATION 

Currently, certain commissioned law enforcement 

personnel receive as longevity pay four dollars 

Per month for each year of service in their 

respective agencies, up to and including twentyfive years of service. 

PURPOSE OF 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. 

(Emphasis added). 

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 longevity pay 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 legislation increases 

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 

personnel of the following agencies. . . . 

Fiscal Note, of April 4, 1979, Bill File for S.B. No. 586, Legislative 

Reference Library. Thus, the fiscal note treats the bill as 

increasing the amount of supplemental pay but not changing the kind of 

service required. 

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 

p. 3306 
Mr. Lawrence F. Alwin - Page 4 (JM-713) 

Game Wardens up to and including the grade of 

Captain. The amounts to be paid to each individual position shall be based on the length of 

service in law enforcement of Game Laws within the 

Department. . . . (Emphasis deleted). 

Acts 1973, 63rd Leg., ch. 659, art. III, at 2013. Attorney General 

Opinion H-198 (1974) determined that it was "necessary for a 

commissioned game warden to be actually engaged in enforcement of the 

game laws to qualify for a longevity increase under this appropriation 

rider." Article 6252-2013. V.T.C.S.. does not place this limitation on 

service which qualifies for hazardous duty pay. 

You next ask: 

Under the terms of article V. 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 

assignment be 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 employee who receives hazardous 

duty pay for law enforcement activities moves to a 

position in another state agency which entitles the 

employee to the same hazardous duty pay he shall be 

granted credit for the total amount of state 

service contributing to eligibility for hazardous 

duty salary payments. 

Acts 1985, 69th Leg., 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 (Emphasis added). The underlined language means that 

the law enforcement officer's hazardous 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 contrasted with 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 state up to and including 25 years of 

service. . . . (Emphasis added). 

p. 3307 
Mr. Lawrence F. Alwin - Page 5 (JM-713) 

Under article 6813d. V.T.C.S., the individual's years of service with 

the state, not merely with a particular agency of the state, are 

considered in determining the amounf of longevity he will receive. 

Section 2(c) of article V of the Current General Appropriations 

Act attempts to allow a state law enforcement officer to transfer his 

credit for hazardous duty pay from the state agency where he earned it 

to another agency which employs him in a position entitling him to 

hazardous duty pay. The purpose end result of this Appropriations Act 

provision is contrary to that of article 6252-2Ob, V.T.C.S., which 

limits hazardous duty pay to the amount earned in serving a particular 

state agency. 

It is well established that an Appropriations Act provision may 

detail, limit, or restrict the use of funds appropriated in the act, 

but a rider to the Appropriations Act may not conflict with 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 article V, section 

2(c) of the current Appropriations Act is inconsistent with 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 

longevity and hazardous duty pay were controlled by the Appropriations 

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 restrictive Appropriations Act riders 

of the Parks and Wildlife Department and Alcoholic 

Beverage Commission conflict with the general law? 

The following rider is appended to the appropriation to the Parks 

and Wildlife Department: 

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 enforcement within the department at the rate of Seven Dollars ($7) per month 

for each year of service up to and including 

thirty years of service. 

Acts 1985, 69th Leg., 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 

inconsistent with article 6252-20b, which requires hazardous duty pay 

p. 3308 
Mr. Lawrence F. Alwin - Page 6 (JM-713) 

to be based on all service in the agency. To the extent the rider 

conflicts with article 6252-2Ob. V.T.C.S., it is invalid. 

The following rider applies to the Alcoholic Beverage Commission: 

Funds appropriated above include hazardous duty 

pay and may be paid to any of the following 

commissioned law enforcement personnel: 

Chief, Enforcement and Marketing Practices 

Assistant Chief, Enforcement and Marketing 

Practices 

District Supervisor 

Assistant District Supervisor 

Senior Agent 

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 further provided 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 following positions after August 31, 

1981, are not entitled to receive hazardous duty 

pay: 

Port of Entry Supervisor 

Port of Entry Inspector II 

Port of Entry Inspector I 

Supervising Auditor II 

Supervising Auditor I 

Auditor III 

Auditor II 

Auditor I 

Assistant Director, Auditing and Tax Reporting 

Senior Tax Auditor (Emphasis added). 

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 to base hazardous duty pay on length of service in law 

enforcement positions. To the extent the rider does so, it is invalid 

because it is inconsistent with general law. 

p. 3309 
Mr. Lawrence F. Alwin - Page 7 (JM-713) 

The above rider is inconsistent with article 6252-20b, V.T.C.S., 

in another way. The general law provides that "all commissioned law 

enforcement personnel of the Texas Alcoholic Beverage 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 employees who 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 longer will 

be law enforcrmenc positions after the dates stated in the rider. 

However, we can conclude that the rider is inconsistent with 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 

enforcement officers. 

SUMM~ARY 

Article 6252-20b, V.T.C.S., provides hazardous 

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 

General Appropriations Act, which purports to allow 

transfer of credit for hazardous duty pay from one 

agency to another, is invalid because it is inconsistent with article 6252-20b. The riders on 

hazardous duty pay found in the appropriations to 

the Parks and Wildlife Department and the Alcoholic 

Beverage Commission are invalid to the extent they 

conflict with article 6252-20b. V.T.C.S. 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

p. 3310 
. 

Mr. Lawrence F. Alwin - Page 8 (JM-713) 

JUDGE ZOLLIE STEAKLEX 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 3311