THE ATTORNEY GENERAL OF TEXAS

December 15, 1988

Honorable Robert E. Davis Chairman Productivity Bonus Commission P. 0. Box 12428, Capitol Station Austin, Texas 78711

Dear Mr. Davis: Opinion No. JM-993

Re: Authority of the Productivity Bonus Commission created by article 6252- 29,V.T.C.S. (RQ-1459)

YOU ask anumber of questions concerning the Productivity Bonus Commission, article 6252-29, V.T.C.S. We will first describe the Commission and highlight its key functions before discussing each ofyour questions.

The Commission ischarged with administering a program designed toproduce savings forthe taxpayers by reducing the operating costs 

### of state agencies through the improvement ofproductivity bymeans of techniques specified inthe statute. See aenerallv V.T.C.S. art. 6252-29, § 6. The Commission is composed of the comptroller of public accounts, the State Auditor, the director of the Legislative Budget Board, a member of the governor's staff, the classification officer appointed under the Position Classification Act of 1961 (art. 6252-11, V.T.C.S.), an officer or employee of apolitical subdivision of the state, and three persons fromprivate industry who have experience in the administration of incentive pay programs. V.T.C.S. art. 6252-29, §2(a).

State agencies inthe executive and judicial branches of the government, with the exception of the governor's office and institutions ofhigher education, may elect to participate in the program outlined in the statute by submitting aplan that 'outlines a strategy . . .that, if implemented, would cause the agency . . .toqualify for a productivity bonus." Id. §4(a). The Act contains detailed instructions and criteria forthe Commission touse indetermining whether anagency plan produces cost savings in itsyearly operations which qualify fora productivity bonus. Id. §§ 5and 6.. Bonuses actually awarded are presented to employees ofthe agency and result inan increase

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of the funds available to the agency for its operations during a subsequent fiscal year. & 5 9. A portion of any cost savings accrued through increased productivity isto be returned to the fund in the treasury fromwhich the agency receives appropriations. Id. Finally,
[i]t isthe intent of the legislature that a state agency or adivision of an agency that reduces its cost ofoperations and qualifies for a productivity bonus . . .may not be penalized for those savings through a corresponding reduction in appropriations for the subsequent fiscal biennium.

V.T.C.S. art. 6252-29, 5 9(e).

You first askwhether the Productivity Bonus Act grants powers of the executive branch to the Productivity Bonus Commission.

The Productivity Bonus Commission ischarged with very specific duties involving the execution of a detailed legislative mandate. Sea, e.a., V.T.C.S. art. 6252-29, §!j7 and 8. Its executive powers are neither fewnor deminimis. $&8 Attorney General Opinion JW-141 (1984). The legislature has expressly conferred authority upon the Commission to execute the law and to determine the manner in which appropriated funds are expended. Italso which are necessarily implied has those powers from the express grant of authority. * d Arr

Railroad Commission f Texa Re nc., 96 S.W.Zd 735 ;)Tex.. Cit. zip. - ow Freiaht Lines, I Austin 1936, writ ref'd). Thepowers of the Commission thus are wholly executive -- they will beused not forceremonial or advisory purposes, but to execute the law andprovide for the disbursement of appropriated funds inapattern selected by the Commission.

You next ask:

If the Commission isan executive agency, does the composition of the Commission -- the presence ofmembers of the legislative branch

--violate the doctrine of separation of powers?

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Article II, .Q1of the Texas Constitution provides for the separation ofpowers between the executive, legislative, and judicial branches.

The powers of the Government of the State of Texas shall be divided into three distinct departments, each ofwhich shall be confided to a separate body ofmagistracy, to wit: Those which are Legislative to one: those which are Executive to another, and those which areJudicial to another: andnoperson, c llection ofnersons, being of one these ZpaZtments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. (Emphasisadded.)

Tex. Const. art. II, 8 1. - The doctrine of -separation of powers serves as a "self-executing safeguard against the encroachment or aggrandizement of onebranch [ofgovernment] at the expense of the other." Bu klev v.Valeo 424 U.S. 1, 122 "Nopolitical trut: iscertainly Afgreater intrinsic(1976). value or is stamped with the authority ofmore enlightened patrons of liberty." Madison, The Federalist No. 47,p. 324 (Cooke ed. 1961). "Thepurpose 

### ofseparation and equilibration of powers ingeneral . . . [is]notmerely to assure effective government but topreserve individual freedom." Morrison v. Olson, 108 S.Ct. 2597, 2637 (1988) (w the dissenting opinion of Justice Scalia). See also ."Separation of Powers," 4Encyclopedia ofthe American Constitution 1659 (1986).
This office has consistently held that any attempt by the legislature to supervise the implementation of statutes through somemeans other than the normal legislative process specified in sections 28 through 40ofarticle IIof the Constitution of Texas violates thedoctrine of separation of powers. Attorney General Opinions JM-872 (1988); MU-460 (1982);V-1305, V-1254 (1951);O-4609 (1942).

The State Auditor and the Director of the Legislative Budget Board are officials of the legislative- branch of government and they are answerable only to that branch. The Auditor isappointed by the Legislative Audit Committee and serves at thewill of the Committee. Gov't Code g 321.005. The Director of the Legislative Budget Board isappointed by

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the Board and isonly accountable to, and serves at thewill of, that legislative agency. Gov't Code 5 322.004.

The doctrine of separation ofpowers does not prevent effective coordination and cooperation between the legislative and executive branches of~the government in the effective resolution ofpublic problems. State Board of Insurance v. Betts, 308 S.W.Zd 846 (Tex.1958). But the legislature may not assume general authority to execute and administer the laws. This principle isuniform throughout American law. See e.a., -son v.Olson, suorq, I.N.S. v. Chadha, 462U.S. 919 (1985). Many of the cases 

### from other states supporting the doctrine are collected in Attorney General Opinion JM-872 which concerned the impermissibility of a legislative official --the State Auditor -- ing activities carried out supervisby executive agencies in administering the law. Theprinciple of separation ofpowers is especially important when the legislature attempts tomanage the expenditure of funds'already appropriated:

[t]heLegislature isno longer authorized to concern itself with the further . . .disbursement of the funds, the constitutional inhibition being not only against actual usurpation of the function, but also against one [branch] setting itself up ina supervisory capacity over the actions of another. [Citation omitted.]

****
[T]he fiscal administration of the affairs of the government [is]an executive duty.
Attorney General Opinion V-1254 (1951),at 15. Thus, the Productivity Bonus Commission isunconstitutionally constituted because some of itsmembers are answerable only to the legislature and share responsibility with executive officers forexecuting the law.

Because the inclusion of officials answerable only to the legislature incommand ofan executive agency violates thedoctrine of separation ofpowers, you askwhether the Commission may continue to function if the legislative officials occupy "advisory positions" only or abstain from voting.

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C There is no authority for either proposition. The

statute certainly expects that the legislative officials named to.the Commission will discharge their duties. These tasks include deciding which agencies are entitled to productivity bonuses and the amount of the bonuses to be awarded. V.T.C.S. art. 6252-29, gg 8 and 9. Such duties
are notmerely advisory but rather involve the exercise of fact-finding and the application of discretion in executing
apublic policy. Officials and officers of the state government, consistent with their duties to the people, may notpick and chose fromamong theduties theywill execute. Additionally, themere q'advisory"presence of officials who serve only at thewill of the legislature incommand of an executive agency may lead to an improper encroachment of one branch into the affairs ofanother.1 See Attorney General Opinion JR-872 (1988).

You also ask:

Does the Commission have authority tomake the awards specified inthe statute out of funds already appropriated to the agencies or their divisions, which participate in productivity bonus plan when some of thz appropriated funds are saved in connection with the productivity improvements contemplated by theAct?

Because we find that the composition of the Productivity Bonus Commission isunconstitutional, we do not consider this question.

1. This opinion should notbe taken tomean that every entity composed of members or officials of different branches of the government is unconstitutional. Some entities consisting 

### ofmembers fromthe different branches ofgovernment may be authorized by the constitution. Other bodies too numerous to list here have many duties that are purely advisory ormerely ceremonial anddo not involve detailed tasks requiring the exercise ofdiscretion about the expenditure of appropriated funds. In such a case, the function of the body may be appropriate under the constitution because nothing in thedoctrine of separation ofpowers prevents coordination and cooperation between the branches ofgovernment.

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SUMMARY

The Productivity Bonus Commission exercises functions of the executive branch of the Government. Because of the doctrine of separation ofpowers, itscomposition may not include officials appointed by, and only answerable to, the legislature. Tex. Const. art. II, §-1.
Very truly yo 

# J b

k, - JIM MATTOX Attorney General of Texas

MARY KELLER First Assistant Attorney General

LOU MCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLBY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by D.R. Bustion, II Assistant Attorney General

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