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 a number 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 of your questions. 

The Commission is charged with administering a program 

designed to produce savings for the taxpayers by reducing 

the operating costs of state agencies through the improvement of productivity by means of techniques specified in the 

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 a political subdivision of the state, 

and three persons from private industry who have experience 

in the administration of incentive pay programs. V.T.C.S. 

art. 6252-29, § 2(a). 

State agencies in the executive and judicial branches 

of the government, with the exception of the governor's 

office and institutions of higher education, may elect to 

participate in the program outlined in the statute by 

submitting a plan that 'outlines a strategy . . . that, if 

implemented, would cause the agency . . . to qualify for a 

productivity bonus." Id. § 4(a). The Act contains 

detailed instructions and criteria for the Commission to use 

in determining whether an agency plan produces cost savings 

in its yearly operations which qualify for a productivity 

bonus. Id. §§ 5 and 6.. Bonuses actually awarded are presented to employees of the agency and result in an increase 

p. 5078 
Honorable Robert E. Davis - Page 2 (JM-993) 

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 is to be 

returned to the fund in the treasury from which the agency 

receives appropriations. Id. 

Finally, 

[i]t is the intent of the legislature that a 

state agency or a division of an agency that 

reduces its cost of operations 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 ask whether the Productivity Bonus Act grants 

powers of the executive branch to the Productivity Bonus 

Commission. 

The Productivity Bonus Commission is charged with very 

specific duties involving the execution of a detailed 

legislative mandate. Sea, e.a., V.T.C.S. art. 6252-29, §!j 7 

and 8. Its executive powers are neither few nor de minimis. 

$&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. It also 

which are necessarily implied 

has those powers 

from the express grant of 

authority. Railroad * Commission f Texa Re d Arr 

nc., 96 S.W.Zd 735 ;)Tex.. Cit. zip. - 

ow 

Freiaht Lines, I Austin 

1936, writ ref'd). The powers of the Commission thus are 

wholly executive -- they will be used not for ceremonial or 

advisory purposes, but to execute the law and provide for 

the disbursement of appropriated funds in a pattern selected 

by the Commission. 

You next ask: 

If the Commission is an executive agency, 

does the composition of the Commission -- the 

presence of members of the legislative branch 

-- violate the doctrine of separation of 

powers? 

p. 5079 
. 

Honorable Robert E. Davis - Page 3 (JM-993) 

Article II, .Q 1 of the Texas Constitution provides for 

the separation of powers 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 of which shall be confided 

to a separate body of magistracy, to wit: 

Those which are Legislative to one: those 

which are Executive to another, and those 

which are Judicial to another: and no person, 

c llection of nersons, being of one these 

ZpaZtments, shall exercise any power 

properly attached to either of the others, 

except in the instances herein expressly 

permitted. (Emphasis added.) 

Tex. Const. art. II, 8 1. - 

The doctrine of -separation of powers serves as a 

"self-executing safeguard against the encroachment or 

aggrandizement of one branch [of government] at the expense 

of the other." Bu klev v. Valeo 424 U.S. 1, 122 

"No political trut: is certainly Af greater intrinsic 

(1976). 

value 

or is stamped with the authority of more enlightened patrons 

of liberty." Madison, The Federalist No. 47, p. 324 (Cooke 

ed. 1961). "The purpose of separation and equilibration of 

powers in general . . . [is] not merely to assure effective 

government but to preserve individual freedom." Morrison v. 

Olson, 108 S.Ct. 2597, 2637 (1988) (w the dissenting 

opinion of Justice Scalia). See also ."Separation of 

Powers," 4 Encyclopedia of the American Constitution 1659 

(1986). 

This office has consistently held that any attempt by 

the legislature to supervise the implementation of statutes 

through some means other than the normal legislative process 

specified in sections 28 through 40 of article II of the 

Constitution of Texas violates the doctrine 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 is appointed by the Legislative Audit Committee and 

serves at the will of the Committee. Gov't Code g 321.005. 

The Director of the Legislative Budget Board is appointed by 

p. 5080 
Honorable Robert E. Davis - Page 4 (JM-993) 

. 

the Board and is only accountable to, and serves at the will 

of, that legislative agency. Gov't Code 5 322.004. 

The doctrine of separation of powers does not prevent 

effective coordination and cooperation between the 

legislative and executive branches of~the government in the 

effective resolution of public 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 is uniform throughout 

American law. See e.a., -son v . Olson, suorq, I.N.S. v. 

Chadha, 462 U.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. The principle of separation of powers is 

especially important when the legislature attempts to manage 

the expenditure of funds'already appropriated: 

[t]he Legislature is no 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 in a 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 is unconstitutionally constituted because some of its members are answerable only to the 

legislature and share responsibility with executive officers 

for executing the law. 

Because the inclusion of officials answerable only to 

the legislature in command of an executive agency violates 

the doctrine of separation of powers, you ask whether the 

Commission may continue to function if the legislative 

officials occupy "advisory positions" only or abstain from 

voting. 

p. 5081 
Honorable Robert E. Davis - Page 5 (JR-993) 

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 not merely advisory but rather involve the exercise of 

fact-finding and the application of discretion in executing 

a public policy. Officials and officers of the state 

government, consistent with their duties to the people, may 

not pick and chose from among the duties they will execute. 

Additionally, the mere q'advisory" presence of officials who 

serve only at the will of the legislature in command of an 

executive agency may lead to an improper encroachment of one 

branch into the affairs of another.1 See Attorney General 

Opinion JR-872 (1988). 

You also ask: 

Does the Commission have authority to make 

the awards specified in the 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 the Act? 

Because we find that the composition of the Productivity 

Bonus Commission is unconstitutional, we do not consider 

this question. 

1. This opinion should not be taken to mean that every 

entity composed of members or officials of different 

branches of the government is unconstitutional. Some 

entities consisting of members from the different branches 

of government may be authorized by the constitution. Other 

bodies too numerous to list here have many duties that are 

purely advisory or merely ceremonial and do not involve 

detailed tasks requiring the exercise of discretion about 

the expenditure of appropriated funds. In such a case, the 

function of the body may be appropriate under the 

constitution because nothing in the doctrine of separation 

of powers prevents coordination and cooperation between the 

branches of government. 

p. 5082 
Honorable Robert E. Davis - Page 6 (JM-893) 

SUMMARY 

The Productivity Bonus Commission exercises functions of the executive branch of 

the Government. Because of the doctrine of 

separation of powers, its composition may not 

include officials appointed by, and only 

answerable to, the legislature. Tex . Const. 

art. II, § -1. 

Very truly yo J - k, b 

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 

P. 5083