# The Attorney General of Texas
March 23, 1981

Honorable John J. Kavanagh, M.D. Commissioner Opinion No. 

### !4?J-311 Texas Department of Mental Health and Mental Retardation P.0. Box12666 Austin, Texas 78711 Dear Dr. Kavanagh: Re: Overtime compensation for employee of the Department of MWMR whoholds afull-time and a part-time job at the same facility

You have requested our opinion ss to whether article 5165a,V.T.C.S., and article V,section 2e of H.B.558, the General Appropriations Act, Acts 1979,66th Legislature, chapter 643, at 2896, require overtime compensation ~tobe paid to an MH/MR employee who holds a full-time and a part-time position with the same MWMR facility. We will assume that state law permits such dual employment. Article 5165a,section 1,V.T.C.S., provides that: All state employees who are employed inthe offices of state departments or institutions or agencies, and who are paid on a full-time salary basis, shall work forty (40)hours a week. Provided, however, that the administrative heads of agencies whose functions are such that certain services must be maintained on a twentyfour (24)hours per day basis are authorized to require that essential employees engaged in performing such services be on duty for a longer workweek innecessary or emergency situations. Article V,section 2eofHouse Bill 558provides as follows: OVERTIME. When a regular, full-time employee is required to work hours inexcess ofthe standard work week established for the positton m accordance wth applicable statutes, the employee shall be entitled to compensation for such overtime either: (1) by receiving equivalent time off during the same biennium.

.. or (2) at the discretion of the employing.

.. agency. .. by receiving pay at a rate equivalent to one and one-half times the regular rate of pay. ... Administrators shall except specific

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executive, administrative and professional positions.

.. from these provisions. (Emphasis added). Acts 1979,66th Lag., ch. 843, art. V,S2e, at 2698. Excepted from the overtime provisions are “professional medical personnel and employees employed in a bona fide executive, administrative or professional capacity.” We assume that the full-time position to which you refer is classified within the Position Classification Plan and that the employees in question are not exempt from the overtime provisions of H.B.556. An employee who holds a full-time position at an MHIMR facility and works in excess of 40 hours per week inthat full-time position isclearly entitled to overtime compensation. The question iswhether hours worked byafull-time MH/MRemployee in a separate, part-time position at the same MWMR facility constitute “hours in excess of the standard work week established for the position” by article 5165a, V.T.C.S. There is a dearth of case law in this area. One of the submitted briefs cites cases arising tmder the Fair Labor Standards Act, 29 U.S.C. sections 201-219,s Hodgson v.Penn Packing Co., 335P.Supp. 1015(E.D.Pa. 197B,and certain Texas cases dealing with overtime compensation,e.+ City of Temple v. Brown, 383S.W. 2d639 (Tex. Civ. App.- Austin 1964,writ dmmd);City of Wichita Falls v. Cox, 300 S.W.2d 317(Tex. Civ. App. - Fort Worth 1957,writ rePd n.r.e.1; Campbell Cleaning and Dye v 163S.W.2d 253(Tex. Civ. App. - ElPaso 1944,writ rePdX However, these cases are not helpful. Aside from the fact that the minimum wage and maximum hour provisions of the FLSA are not binding upon the states, National League of Cities v. Usery, 426 U.S. 633 (1976),the overtime provisions of the FLSA are quite different from those of the General Appropriations Act. The Texas cases which are cited are inapposite. And our ownresearch has disclosed no case which is onpoint. Our objective in construing the overtime provisions of the General Appropriations Act must be to ascertain and give effect to the legislature’s intent. Jessen Associates, Inc. v. Bullock, 531S.W.26593(Tex 1975). Intent must beascertaiexamining the entire enactment Citizens Bank v. First State Bank, 580 S.W.2d 344 (Tex. 1979). When the overtime provisions are clceel~ scrutinized, it becomes apparent that the legislature addressed nothing more than the issue. of overtime compensation for regular, full-time state employees who work additional hours inthe fulltime position in which they are employed. There is nothing to indicate that it even contemplated a situation involving an employee whoputs in more hours than his full-time position calb for, but in a separate, part-time position in which he chooses to work Wedecline to hold that such an employee is entitled to overtime for the hours worked in the part-time position absent any evidence that the legislature intended this result or, for that matter, even considered the question. See State v. Standard, 414S.W. 2d 148(Tex. 1967);Gilbert v. State, 437 S.W. 2d 44mex. Civ. App. -Houston B4th Distl 1969, writ rePd n.r.e.) (legislative grants of rights or privileges are construed strictly infavor of state; anything not unequivocally granted inclear and explicit terms is withheld).

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We therefore conclude that an MH/MR employee who hol& a full-time and a part-time position at the same MH/MR facility is not entitled to overtime for the hours worked inthe part-time position. SUMMARY Article 5l65a, V.T.C.S., and article V, section 2e of the General Appropriations Act donot entitle an MH/MRemployee who holds a full-time and a part-time position at the same MH/MR facility to overtime for the hours worked in the parttime position. 

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MARK WHITE Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD E.GRAY III Executive Assistant Attorney General Prepared byJon Bible Assistant Attorney General APPROVED: OPINION COMMlTTEE Susan L.Garrison, Chairman Jon Bible Lucius Bunton Rick Gilpin

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