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 Wage and Hour 

Dear Mr. Calvert: Laws. 

Your request for an opinion on the above subject 

matter poses the following questions: 

The United States Supreme Court In Maryland v. WI&z, 

88 S.Ct. 2017 (1968), held that the 1966 amendments to the Fair 

%a;; Standards Act as they applied to employees of states were 

. Therefore, such amendments constitute pre-existlng law 

within the meaning of Section 44 of Article III of the Constitution of Texas, authorizing the legislature to make appropriations 

to pay employees of the state covered by the Fair Labor Standards 

Act,-,~(md to pay at a higher rate for overtime work. 

However, Section 6 of Article VIII of the Constitution 

of Texas provides that no money shall be drawn from the Traasury 

the Treasury except pursuant to a specific appropriation, in 

view of the provisions of Section 6 of 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 a ground for the rendition of the judgment 

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Hon. Robert S. Calvert, page 2 (M-341) 

the failure of the Department to pay costs 

adjudged against It by this Court on a former appeal. We do not approve this portion 

of the trial court Is judgment. The Depart - 

ment is prohibited from making any payment 

except in pursuance of a apeciflc appropriation of funds by the legislature by Article 

VIII, Section 6, of the Texas Constitution. 

Pickle v. Finley, 91 Tex. 484, 44 S.W. 

486 {Tex. 1898). 

“While the costs were properly taxed 

against the Department, payment can only be 

made from funds appropriated for that purpose 

by the leglal@ure, and the State, or an 

agency thereof, will not be penalized by its 

Inability or failure to make such payments. 

Hout ch&ns v, State, 74 S.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, 78 S.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 payment may be made, the legislature must appropriate money for 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 

may be made. Subdivision e of Section 2 of Article V of 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 1 l/2 

times the overtime performed within the seme month 

(pay period), that said overtime wae accrued. 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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Hon. Robert S. CalVert , Page 3 (M-341) 

executive, admlnlstratlve or profeeslonal capacity, 

Including any employee 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 money from the state treasury to pay 

8uch overtime claims. 

Therefore, you are advised that Payment of 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 amendment to the Fair Labor Standard8 

Act do have a valid claim against the State for the ainount of 

money due them for overtime work performed. 

SUMMARY 

Payment of overtime In cash to state employee8 

covered by the 1966 Congfesslonal Amendmelit to the 

Fair Labor Standard8 Act is not authorized alnce 

the legislature has not made an aporoorlatlon 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 John Reeve8 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTES 

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L * 

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

Kerns Taylor, Chairman 

George Kelton, Vlce-Chalrman 

Malcolm Quick 

Arthur Sandlln 

Lonny Zwiener 

Bob Crouch 

W. V. GEPPFRT 

Staff LegaZ'Assistant 

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