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. Box 12666 

Austin, Texas 78711 

Dear Dr. Kavanagh: 

Re: Overtime compensation for 

employee of the Department of 

MWMR who holds a full-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 

~to be 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 in the 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 in necessary or emergency situations. 

Article V, section 2e of House Bill 558 provides as follows: 

OVERTIME. When a regular, full-time employee is 

required to work hours in excess of the 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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Honorable John J. Kavanagh - Page Two (MN-311) 

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 in that full-time position is clearly entitled to overtime 

compensation. The question is whether hours worked by a full-time MH/MR employee 

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., 335 P. Supp. 1015 (E.D.Pa. 197B, and certain Texas cases 

dealing with overtime compensation,e.+ City of Temple v. Brown, 383 S.W. 2d 639 

(Tex. Civ. App. - Austin 1964, writ dmm d); 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 163 S.W. 2d 253 (Tex. Civ. App. - El Paso 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 own research has disclosed no case which is 

on point. 

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, 531 S.W. 26 593 (Tex 1975). Intent must be ascertaiexamining 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 in the 

fulltime position in which they are employed. There is nothing to indicate that it 

even contemplated a situation involving an employee who puts in more hours than his 

full-time position calb for, but in a separate, part-time position in which he chooses 

to work We decline 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, 414 S.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 in favor of state; anything not unequivocally granted 

in clear and explicit terms is withheld). 

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Honorable John J. Kavanagh - Pege Three @h’-311) 

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 in the part-time position. 

SUMMARY 

Article 5l65a, V.T.C.S., and article V, section 2e of the 

General Appropriations Act do not entitle an MH/MR employee 

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. 

vQ.vtrzg 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMlTTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Lucius Bunton 

Rick Gilpin 

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