THE ATNBRSEY GESERAL 

OF?l?ExAS ( 

AUUTXN. TKXAU 7iB7ll 

July 25, 1975 

The Honorable M. James Merits, D. D. S, 

Secretary-Treawrsr 

Opinion No. H- 648 

Tcxar State Board of Dental Examiners 

Capital National Bank Building 

Auetin, Texar 70701 

Rc: Propriety of rupplemental 

Balary for parttime executive 

recretary for Texae State Board 

of Dental Examiners 

Dear Dr. Morite: 

You have arked our opinion about the legality of ralary aupplementr 

made by the Board of Dental Examiner8 to compensate ita part-time Executive 

Secretary for additional dutier assumed at the requccrt of the Board. Those 

additional duties concerned the administration of the dental laboratory and dental 

technician regie.tration program mandated by article 4551f Q 6, V. T. C. S., which 

wae enacted by the 63rd LegMature in 1973. The State Auditor has queationed 

the legality of the payments already made for rupplemental ralary, and the State 

Comptroller has refused to honor voucherr for further payments. 

Section 6 Article 4551f, V. T. C. S., require6 dental laboratorier and 

dental technician8 to register with the Texas State Board of Dental Examiners each 

year, and to pay a fee “to the Dental Registration Fund. ” It creates the Dental 

Laboratory Advisory Board to advise the Board of Dental Examiners about matters 

concerning dental laboratories and dental technician*. The 1973 Act further provided: 

The income received from fee8 adthoiiced by thicl Act 

io hereby appropriated to the Texar State Board of Dental 

Examiner@ for the fircal yearn ending 1974 and 1975 for 

its expenditure0 for the implementation of thir Act and for 

the purpoeer lirted in the General Appropriations Bill as 

parred by the 63rd Legislature. Acts 1973, 63rd Leg., 

ch. 65, $ 3. 

The “Dental Regirtration Fund” ir a creature of an earlier rtatute, article 

4550a. rection 3 of which provider that all annual regirtration feer collected by the 

Board of Dental Examiner8 are to be placed in the State Treasury to the credit of 

the Fund, that all expenditure1 from the fund rhall be “for. the purporea and in the 

amounta fixed by the Legirlature in the general appropriationa billa, ” and that the 

p. 2845 
The Honorable M. Jamer Morits, D. D. S. - Page 2 (H-648) 

State Board of Dental Examiners shall be authorized to employ and to compensate 

from such special funds employees and such other persons ‘I. . . to assist the 

local prosecuting officers . . . and to carry out the other purposes for which said 

fund is hereby appropriated. ” As amended in 1961, section 4 of article 4550a, 

authorizes the Board to employ an Executive Secretary “to aid the Board in performing the duties prescribed in this Section” and empowers the Board to fix his 

salary to be paid out of the “Dental Registration Fund. ‘I It requires the Executive 

Secretary to give bond for the faithful performance of his duties and for “the safekeeping and proper disbursement of said ‘Dental Registration Fund’ and all other 

funds coming into his hands. ‘I Cf. Attorney General Opinion O-4676 (19421. After 

enactment of section 6 of articF455lf, the Board of Dental Examiners directed 

that all functions of the Advisory Board would be handled through the central office 

of the Board of Dental Examiners (Board Minutes, Nov. 3, 1973). In Januar 

the Board of Dental Examiners and the Laboratory Advisory Board unanimous ----+- y 

approved assignment’- to the part-time Executi’ve Secretary of the Board of Dental 

Examiners of the major responsibility folp administrative ‘functions pertaining’ _ 

to the Dental Laboratory Advisory Board and its work for a salary of “$500 per 

month beginning September, 1973. ” (Board Minutes, Jan. 13-14, 1974). 

The current General Appropriations Act, (Acts. 1973,63rd Leg. , ch. 659, p. 

1952) specifies the following for the Board of Dental Examiners: 

BOARD OF DENTAL EXAMINERS 

For the Years Ending 

August 31, August 31, 

1974 1975 

Out of the Dental Registration Fund: 

Personal Services-- 

2. Executive Secretary [part-time) 12,000 12,500 

The amounts specified above are appropriated from revenues 

received during ea.& year ,of. the bienniuti beginning with. the effective 

date of this Act, and from any balances on hand at the beginning of 

each ,fiscal year of such bi,ennium‘in ,the’ Dental R&&ration Funa 

(No. 86). 

Attorney General Opinion H-553 (1975) cited authority to the effect that 

statutea which provide for the compensation of public officers are to be construed 

in favor of the government, and concluded that artiule 6813b, V. T. C:S. precluded 

the salary supplementation considered there. That 1965 statute (which repealed 

inconsistent laws and parts of laws) reads in part: 

p. 2046 
The Honorable M. Jamer Morite, D. D. S. - Page 3 (H-648) 

. . 

Section 1. From and after the effective date of thir 

Ac t, a ll l alarier of all State officerr and State employeer, 

including the ralarier paid any individual out of the General 

Revenue Fund, shall be in ouch sumr or amounta ae may be 

provided for by the Lcgirlature in the biennial Appropriationr 

Act. Ii ir rpecifically declared to be one of the intentr hareof tliat the Legirlature shall al60 fix the amount of rupplemental l alariee hereafter, out of court feer and receiptr, to be 

prtd to the clerks and other employeeo of the Courtr of Civil : 

Appealr, the Supreme Court and the Court of Criininal 

Appeals. It ir further provided that in inrtancer wheie the . 

biennial Appropriation8 Act doer not rpecify or regulate the 

ralarier or compenration of a State official or employee, the 

law specifying or regulating the ralary or compenration of 

l uch official or employee ie, not rurpended by thin Act. 

We rlro quoted article 3, rection 44 of the Texan Conrtitution which 

readr: 

The Legirlature rhall provide ey law for the compenration 

of all officers, servant%, agent% and public contractors, not 

provided for in thim Conrtitution, but #hall not grant extra compenration to any officer, agent, servant, or public contractor% 

after much public rervice #hall have been performed or contract entered into, for the performance of the rame; nos grant, 

by appropriation or otherwire, any amount of money out of the 

Treasury of’ the State, to any individual, on a claim, real or 

pretended, when the rame rhall not have been provided for by 

pre-exirting law; nor employ any one in the name of the State, 

unlerr authorized by prc-exirting law. 

We believe there provirionr control. Although partr of article 45508 and 

meetion 6 of article 455lf are rueceptible of other interpretationr, they murt be read, 

if pormible, in a manner conmimtent with article 6813b and the conrtitutional language. 

Madden v. Hardy, 50 S. W. 926 (Tex. Sup. 1899); Allen v. Davir, 333 S. W. 2d 441 

rr C’ A 

Co% o;‘+eE raid: 

-- Amarillo. 1960, no writ). In Madden v. Hardy the Supreme 

We have under conrideration a statute, the conrtruction 

of which in very difficult. One conrtruction would give to 

the offictal some compenration for hir l ervice in addition 

to hir salary. The statute admitm of another conrtruction 

which would not have thir effect. In much a case the latter 

rhould be adopted. 50 S. W. at 928. 

p. 2047 
, 

The Honorable M. Jamer Morita, D. D. S. - Page 4 (H-648) 

That portion of article 455Oa which authorises the Board to fix the salary 

of the Executive Secretary must be read in light of the portion allowing expcnditures from the Dental Regimtration Fund “in the amounts fixed by’the Legislature 

in the general appropriations bills. ‘I Accordingly, in our opinion the Board is 

authoriced to fix the salary of the Executive Director only within the limits set by 

the Legislature in the general appropriations act. 

Section 6 of article 4551f, appropr,iating dental laboratory and dental technician registration fees to the Board of Dental Examiners “for its expenditures for 

the implementation of this Act and for the purposes listed in the General Appropriations Bill, ” does not expressly permit the Board to supplement the salary of its 

part-time Executive Secretary;or if it did, there are no rtandardm to guide the 

Board in determining the additional amount which’might be allowed. See Attorney 

General Opinion H-553 (1975). The general rule is that an officer is entitled to 

no additional compensation for discharging additional duties assigned to him unless 

the law expressly allows it. 47 Tex. Jur. 2d Public Officers 5 177. We are aware 

of no different rule to be applied to “part-timaces or positionr. 

The Executive Secretary of the Board ir charged with the proper disposition of the Dental Regiutration Fund from which his ialary ir paid. Article 4550a, 

section 3 specifies that expenditures from the fund shall be “for the purposes and 

in the amountr fixed by the Legislature in the General Appropriations Bills. ” We 

do not believe the Legislature intended that the srlary it fixed for the part-time 

Executive Secretary could be increased to suit the pleasure of the Board if the 

duties assigned to him by the Board of.Examiners were changed to include some rerponsibility for the newly created: Advisory Board. So far as we have been informed, he remained a part-time Executive Secretary even after assuming the additional duties. 

In Attorney General Opinion O-1006 (1939) Attoiney General Mann was 

asked to construe provirions in the then-current General Appropriations Act havir.3 

to do with “partdime” and “full -time” positions. On page 6 of that opinion, and or. 

subsequent pages, are these parsager: 

It appears to us that the Legislature evidently . . . 

considered alI salaiicd positions nairied’.in the Act 

be clarmified aa [“full-time” poritions], unless 

it had otherwise provided by designating a particular 

position a~ a ‘part-time’ one. The Legislature is 

presumed to have known exactly what was in the Act 

. . . . 

In connection with what we have just l aid, we call 

p. 2040 
The Honorable MA. James Moritz, D. D.S. - Page 5 (H-648) 

your attention to the fact that the Act makea 

. . . specific appropriations for part-time 

employees . . . . [ s]uch appropriations are 

as follows: 

State Board of Dental Examiners, item 2, 

‘Secretary part-time $1060’; . . . (Emphasis 

added) 

. . . Those listed above are definitely parttime employeea Some of them are not expected to work full-time each day, but only 

a part thereof. . . Their positions are espectally created by a specific appropriation 

made for that purpose. 

It seems to us that the Legislature has, by the 

Act under review, made a particular, definite, 

limited and precise appropriation for each and 

every salaried position provided for therein . . . . 

Consequently, in our opinion, the State Auditor and the State Comptroller 

of Public Accounts are correct in treating the salary supplement paymentwas 

unauthoriaed by law. 

SUMMARY 

Salary supplement payments to the part-time Executive Secretary of the Board of Dental Examiners 

in excess of the salary fixed by the General Appropriations Act are unauthorized. 

. 

*Very truly yours, 

Attorney General of Texas 

. p. 2849