# 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 ofDental Examiners Dear Dr. **Morite:**

You have arked our opinion about the legality of ralary aupplementr made by the Board ofDental Examiner8 to compensate ita part-time Executive Secretary for additional dutier assumed at the requccrt of the Board. Those additional duties concerned the administration ofthe dental laboratory anddental technician regie.tration program mandated by article 4551f Q6, 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, andtheState Comptroller has refused to honor voucherr for further payments.

Section 6Article 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. ” Itcreates theDental Laboratory Advisory Board to advise the Board ofDental 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 tothe Texar State Board of Dental Examiner@ for the fircal yearn ending 1974 and 1975 for its expenditure0 for the implementation ofthir **Act** and for the purpoeer lirted inthe General Appropriations Bill **as** parred by the 63rd Legislature. **Acts** 1973, 63rd Leg., ch. 65, $3. The “Dental Regirtration Fund” ir 

### acreature ofan earlier rtatute, article 4550a. rection 3ofwhich provider that all annual regirtration feer collected bythe Board of Dental Examiner8 

### are **to**be placed inthe **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 thatthe

p. 2845The 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 6of 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. 2046The Honorable M. Jamer Morite, D.D.S. - Page 3 (H-648)

.. Section 1. From and after the effective date ofthir Act, all 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 ofthe intentr hareof tliat the Legirlature shall al60 fix the amount of rupplemental l alariee hereafter, out of court **feer** and receiptr, tobe prtd to the clerks and other employeeo of the Courtr of Civil : Appealr, the Supreme Court and the Court of Criininal Appeals. Itir further provided that in inrtancer wheie the

. biennial Appropriation8 Act doer not rpecify or regulate the ralarier or compenration ofa 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 thimConrtitution, but #hall not grant **extra** compenration to any officer, agent, servant, or public contractor% after muchpublic rervice #hall have been performed or contract entered into, for the performance ofthe rame; **nos** grant, **by** appropriation or otherwire, any amount **of**money out ofthe 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 inthe name ofthe State, unlerr authorized by prc-exirting law. We believe there provirionr control. Although partr ofarticle 45508 and meetion 6of article 455lf are rueceptible of **other** interpretationr, they murt be read, ifpormible, in amanner conmimtent with article 6813b and the conrtitutional language. Madden v. Hardy, 50S.W. 926 (Tex. Sup. 1899); Allen v. Davir, 333 S.W.2d441 rr C’ A Co% o;‘+eE raid:

-- Amarillo. 1960, no writ). InMadden v. Hardy the Supreme
We have under conrideration a statute, the conrtruction ofwhich invery difficult. One conrtruction would give to the offictal some compenration for hir l ervice in addition to hir salary. The statute admitm ofanother conrtruction which would not have thir effect. In muchacase the latter rhould be adopted. 50S.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 tofix the salary of the Executive Secretary must be read inlight ofthe portion allowing expcnditures from the Dental Regimtration Fund “in the amounts fixed by’the Legislature inthe general appropriations bills. ‘I Accordingly, inour opinion the Board is authoriced tofix the salary ofthe 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 totheBoard ofDental Examiners “for its expenditures for the implementation **of**this Act and for the purposes listed inthe General Appropriations Bill, ” does not expressly permit the Board to supplement the salary ofits part-time Executive Secretary;or ifit did, there are no rtandardm to guide the Board in determining the additional amount which’might be allowed. SeeAttorney General Opinion **H-553** (1975). The general **rule** is that **an** officer is entitled to noadditional compensation for discharging additional duties assigned tohim unless the law expressly allows it. 47 Tex. Jur. 2d Public Officers 5177. We are aware of no different rule to be applied to “part-timaces or positionr.

The Executive Secretary ofthe Board ir charged with the proper disposition of the Dental Regiutration Fund from which his ialary ir paid. Article 4550a, section 3specifies that expenditures from the fund shall be “for the purposes and in the amountr fixed by the Legislature inthe 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 thepleasure ofthe Board ifthe duties assigned tohim **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 apart-time Executive Secretary **even** after assuming the additional duties.

InAttorney General Opinion O-1006 (1939) Attoiney General Mann was asked to construe provirions inthe then-current General Appropriations **Act** havir.3 to dowith “partdime” and “full -time” positions. Onpage 6ofthat opinion, and or. subsequent pages, **are** these parsager:

Itappears to us that the Legislature evidently

. . . considered alI salaiicd positions nairied’.in the Act be clarmified aa [“full-time” poritions], unless ithad otherwise provided by designating aparticular position a~ a ‘part-time’ one. The Legislature is presumed tohave known exactly what was inthe Act

. . .. Inconnection with what we have just 

### l aid, we call

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

your attention to the fact that theAct 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 towork full-time each day, but only apart thereof.

. . Their positions are espectally created by a specific appropriation made for that purpose.

It seems tousthat 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 intreating the salary supplement paymentwas unauthoriaed by law. SUMMARY

Salary supplement payments tothe part-time Executive Secretary of the Board of Dental Examiners in excess ofthe salary fixed by the General Appropriations Act are unauthorized. .

*Very truly yours,

Attorney General of Texas

. p. 2849