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JIM MATTOX Attorney General

Supreme Court Building P. 0. BOX 12546 Austin, TX. 76711. 2546 51214752501 Telex 9101674-1367 Telecopier 5121475.0266

714 Jackson. Suite 700 Oatlas, TX. 75202.4506 2141742.6944

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/1401 Texas, Suite 700 rston, TX. 77002-3111 I 031223.5666

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200 Main Plaza, Suite 400 San Antonio, TX. 76205.2797 512/225-4191

An Equal Opportunity/ Affirmative Action Employer

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# The Attorney General of Texas

SeIltember

19, 1986

Honorable Oscar H. Mauzy Chairman Committee on Jurisprudence Texas State Senate P. 0. Box 12068 Austin, Texas 78711 Dear SenatorMauzy: OpinionNo. ~~-548 lb?: Whether theTexas Department of Corrections may require completion of one year of service before awardinghazardous duty pay

You have asked our opinion in regard to the validity of the Texas Department of Corrections' policy of requiring its employees to complete one year of employment before they may become eligible to receivehazardousduty pay. Article 6252-20b,V.T.C.S.,provides:

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 .commissionedby the Texas Parks and Wildlife commission, all commissioned peace officers of state institutions of hieher education, antlall law enforcement personnel commis- -sionedF-the Texas Department of Corrections,and all emplo@es or officialsof the Board of Pardons and Paroles who have routine direct contact with inmates cf any penal or correctional institution or with administratively released Drisoners

of existing hazardous duty or longevity pay. (Emphasisiadded). You have only asked {aboutthe constructionof this act from the period beginning September 1, 1983 to the present. The General AppropriationsAct for the bienniumbeginning September 1, 1983,provides:

p. 2426Honorable Oscar H. Mauzy - :?age2 (JM-548)

27. . . . tha!Department of ,Corrections is authorized to pay hazardous duty pay at a rate of Seven Dollars ($7.00)per month for each year of State service up to and including the 30th year for the following classifications: Warden II, Warden I, Assistant Warden, Major of Correctional Officers, Captain of Correctional Officers, Lieutenant of Ccxrectional Officers, Sergeant of Correctional OffJcers, Correctional Officer III, Correctional OffJ.cerII and Correctional Officer I. Employees in other classifications who work within the prisor,compound or whose work requires daily contact r.ith inmates may also receive hazardous duty pay; however, the total number of employees in other classifications eligible to receive hazardous;duty pay shall not exceed 500 non-unit employe=s. A list of such employees shallbe filed annuallywith the Governor'sOffice of Management and Budget and the Legislative Budget Board. (Emphasisadded). Acts 1983, 68th Leg., ch. 1095, at 5794. The General Appropriations Act for the bienniumbeginning September 1, 1985,provides in part:

The Department of Corrections is authorized to nav

A. All persons t,lassified as CorrectionalOfficer I throughWarden. . . . (Emphasisadded). Acts 1985, 69th Leg., ch. %O, at 7353. You have informed us that TDC policy states that, when a new correctionalofficer is eq?loyed, the new employee is classified as a CorrectionalOfficer I for a one-month trainingperiod, and then as a Correctional Officer II for a six-monthprobationaryperiod, and then as a CorrectionalOfficer III. However, under the TDC hazardous duty policy, no correctional o!ificersare granted hazardous duty pay for the first five months of occupying these positions. The issue is, therefore,whether thephrase "for eachyear of state service" as used in article 6252-20b, and the Appropriations Act require that a correctional officer &ete one year of employmentwith TDC before the employee is entitled tohazardous duty pay. For the following reasons,we conclude that article 6252-20b,V.T.C.S.,which authorizes TDC to require its employet?s to complete one year of employmentbefore theymay become eligible te) receivehazardous dutypay; isvalid.

p. 2427Honorable Oscar H. Mauzy - :?age3 (JM-548)

The TDC is an admixtstrative agency of the state and is authorized to promulgate riles and regulations which are not inconsistentwith its enabling act and other state statutes. See V.T.C.S. art. 6166a et. seq. (enabling act); V.T.C.S. art. 6252xa, 93(l) (definitionof state agency); Stanfieldv. Texas Department of Public Safety, 422 S.W.2d 14 (TEx. Civ. App. - Dallas 1967, writ ref'd n.r.e.). Article 6252-2Ob, V.T.C.S., specifically authorizes TDC to award hazardous duty pay tl)"all law enforcementpersonnel" entitled to receive it. However, these law enforcement officials must also meet the required statutory time of servicewith the department. It is our opinion tha: the legislature's use of the words "for each year of state service" is unambiguous and its meaning is clear and obvious. Wall V. Wall, 172 S.W.2d 181 (Tex.Civ. App. - Amarillo 1943, writ ref'd w.o.m.1. The legislature specified the minimum amount of time, one year, ::n which an employeemust serve before the benefit may be awarded. Wz are not at liberty to enlarge or modify this time period. The enployee must have completed one year of servicebefore he canbe awsrded thesebenefits. Moreover, this office has consistentlyheld that when the length of service is used to establish state employeebenefit entitlements in state statutes and approgtriationsacts, the specified amount of service means the completion of the period of time specified. See Attorney General Opinions IfiJ-282 (1980);H-341 (1974);M-984 (1971). Accordingly, TDC is authorkzed to require its employees to complete one year of employment beEore they may become eligible to receive hazardousduty pay. SUMMARY

Article 6252-2X,,V.T.C.S., authorizes theTexas Department of Corrections to require its employees to complete one )'earof employmentbefore theymay become eligible t3 receivehazardousduty pay. Very trulyyour , 

# L-l-b

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JIM MATTOX Attorney General of Texas JACK HIGHTOWER FirstAssistantAttorney General MARY KELLER ExecutiveAssistantAttorney General

p. 2428Honorable Oscar H. Mauzy - Iage 4 (JM-548)

RICK GILPIN Chairman,Opinion Committee Preparedby Tony Guillory AssistantAttorney General

p. 2429