### THE ATCOECNEJC GENEP~AL OlF?&lXAS

February 3.9, 1969

Honorable Robert S. Calvert Opinion No. M- 341 Comptroller of Public Accounts State Capitol Building Re: Authority for payment of Austin, Texas overtime In cash to state employees covered by Federal WageandHour Dear Mr. Calvert: Laws.

Your request for an opinion onthe above subject matter poses the following questions:

TheUnited States SupremeCourt In Maryland v. WI&z, 88S.Ct. 2017 (1968), held that the 1966amendmentsto the Fair %a;; Standards Act as they applied to employees of states were

. Therefore, such amendmentsconstitute pre-existlng law within the meaning of Section 44 of Article III of the Constitution of Texas, authorizing the legislature to makeappropriations to pay employees of the state covered bythe Fair Labor Standards Act,-,~(md to pay at a higher rate for overtime work.

However, Section 

### 6of Article VIII of the Constitution of Texas provides that nomoneyshall be drawnfrom the Traasury

the Treasury except pursuant to a specific appropriation, in view of the provisions of Section 

### 6of Article VIII, Constltutlon of Texas.

In Texas Department of Public Safety v. Morris, m, the court stated:

“In its judgment the trial court recited as aground for the rendition of the judgment

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the failure of the Department to pay costs adjudged against It by this Court on a formerappeal. Wedo not approve this portion of the trial court Isjudgment. TheDepart- ment is prohibited from makinganypayment except in pursuance of a apeciflc appropriation of funds by the legislature by Article VIII, Section 6, of the Texas Constitution.

Pickle v. Finley, 91Tex. 484, 44 S.W. 486 {Tex. 1898).

“While the costs were properly taxed against the Department, payment can only be madefrom funds appropriated for that purpose by the leglal@ure, andthe State, or an agency thereof, will not be penalized by its Inability or failure to makesuch payments. Houtch&nsv, State, 74S.W.2d 976 (Tex.Com. App. 1934, opinion adopted); Ibanez v. State, 123 S.W.2d 704 (Tex.Civ.App., El Paso 1939) Reed v. State, 78S.W. 2d 254 I(Tex.Civ.App., Austin 1934), error dismissed. Therefore, while employees of the state covered by the Fair Labor Standards Act of Congress will have a valid claim against the state for the payment of overtime In caeh; nevertheless, before such paymentmaybemade, the legislature must appropriate moneyfor said purpose. The current General Appropriations Act (House Bill 5, Acts 60th Legislature, 1st Called Session 1968) does not contain an appropriation from which overtime pay maybe made. Subdivision e of Section 2of Article Vof the General Appropriations Act provides as follows:

“e
. OVERTIME.In order to reimburse emplo ees for work performed in excess of forty (403 hours in any one week, it Is required that compensatory time be granted at the rate of 1l/2 times the overtime performed within the sememonth (pay period), that said overtime waeaccrued. In the case of hospital employees, said employees shall be reimbursed with compensatory time at the rate of 1 l/2 times the overtime .accrued In excess of eighty (80) hours over a fourteen (14) day consecutive period.

“This provision shall not apply to medical personnel and employees employed in a **bona** fide
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executive, admlnlstratlve or profeeslonal capacity, Including anyemployee employed In the capacity of academic administrative personnel or teacher In elementary or aecondarg echoola. Compensatory time for those employees excepted from this provision ahall be determined by the Admlnlstrator of the agency or Institution involved,” While the above quoted provision8 of the General Appropriations Act authorize compensatory time to be granted for work performed overtime, such provision doe8 not authorize the withdrawal of additional moneyfrom the state treasury to pay 8uch overtime claims.

Therefore, you are advised that Paymentof overtime in cash to state employees Is not Permitted in the absence of a specific appropriation for said purpose. Individuals covered by the 1966 Congressional amendmentto the Fair Labor Standard8 Act dohave a valid claim against the State for the ainountof moneydue themfor overtime work performed. SUMMARY Paymentof overtime In cash to state employee8 covered by the 1966 Congfesslonal Amendmelitto the Fair Labor Standard8 Act is not authorized alnce the legislature has not madeanaporoorlatlon for the payment of 8UCh. Article VIII-, section 6, constitution of Texae. Such lndlvlduals have a claim against the State for the payment of such overtime Pay. Y9t98 very truly,

Prepared by JohnReeve8 Assistant Attorney General APPROVED: OPINIONCOMMITTES

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Hon. Robert S. Calvert, page 4 (M-341)

Kerns Taylor, Chairman George Kelton, Vlce-Chalrman Malcolm Quick Arthur Sandlln LonnyZwiener BobCrouch W.V. GEPPFRT Staff LegaZ'Assistant

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