The Honorable Bob Bullock OpinionNo. ~I-768

Comptroller of PublicAccounts Lyndon B. Johnson Building Re: Method by which Austin, Texas 78774 salariesof state employees are to be calculated when employees receive pay for only part of a month. Dear Mr. Bullock: you have requested our opinion concerning articleV, section 2(a) of the current appropriationsact, Acts 1975, 64th Leg., ch. 743, p. 2417,which provides in part at page 2845: All annual salaries appropriatedby this

Act shall be paid in twelve (12)equal monthly installments,except as otherwise provided in Article II of thisAct. The equivalenthourly rate of pay for annual employeesmaintaining a 40 hour work week and covered under Article 5165a,Vernon's Civil Statutes, as amended, shall be determinedby dividing the annual salaryby 2,080. This basis applies to partialpay overtime and other special situations. When a full-time or regular part-time employee is on leavewithout payI compensation for that particular pay period shall be reduced at the equivalent hourly,rate of pay times the number of work hours lost by leavewithout pay.

p. 3241.

The Honorable Bob Bullock - page 2 (H-768)

You have presented the followingexamples of the operation of this provision:

EXAMPLES OF SALARY COMPUTATIONSPURSUANT TO ART. V 8 2 All examples are based on an employee. receiving a salary of $lZ,OOO.OOannually, $l,OOO.OOmonthly or $5.71hourly. Calculation for PartialMonth's Pay: 1) An employeewho works 22 days during a month which has 23working days will have his pay computed as follows: 22 days x 8 hrs. x $5.77per hr. = $1,015.52 or $15.52more than the $l,OOO.OOhe would have received forworking a fullmonth. 2) An employee could work 21 Z/3 days during a month containing 22 or 23 working days and be paid $l,OOO.OOwhich is asmuch as an employee who worked the fullmonth. 21.67 days x 8 hrs. x $5.77per hr. = $1,000.00 Calculation of Partial Month Due to Employee being on LWOP (LeaveWithout Pay]: 1) During a month having 23 working days, an employee on LWOP for 22 days will have his pay computed as follows: $1,000.00 - 22 days x 8 hrs. x $5.77 = -815.52 In this case, not only is he not paid for the day worked, but he owes the statem5.52. If he had been paid positively for the day worked, he would have received $46.16.

p.3242The HonorableBob Bullock - page 3 (H-768)

2) During a month having 21 working days, an employee on LWOP for 19 days will receive $122.96using the negativemethod: $1,000.00 - 19 days x 8 hrs. x $5.77 = $122.96 If he were to be paid on the partialmonth positive approach, the calculationwould be: 2 days x 8 hrs. x $5.77 = $92.32 3) In certain cases such as maternitywhere an employeemay be on LWOP for 23 working days of a 23 working day month, the calculationwould be as follows: $1,000.00 - 23 working days x 8 hrs. x $5.77
= -$61.68 Instead of simplynot being paid for themonth on LWOP, the employee owes the State $61.68. 4) According to the procedure as outlined in Art. V, an employee on LWOP for 20 days during a pay period of,20 working days could theoreticallybe paid $76.80 even though no work was actuallyperformed: $1,000.00 - 20 days x 8 hrs. x $5.71 per hr. = $76.80 Positive PartialMonth's Pay Calculation compared to Negative LWOP Calculation for same Pay Period: In a month with 21 working days, an employeeworking 18 days and terminatingwould receive the following compensation: 18 days x 8 hrs. x $5.71 per hr. = $830.88
An employeewho also works 18 days in a month with 21 working days and is on LWOP for 3 days would receive the following compensation:

p. 3243The Honorable Bob Bullock - page 4 (H-768)

$1,000.00 - 3 days x 8hrs. x $5.77 per hr. = $861.52 These examples clearly indicate that employees working the same number of days in the same pay period at the same pay scale can receive different compensation. In light of these problems,you ask: 1) Is the language of Article V, 8 2 pertaining to the hourly rate calculation and the situations to which it applies so inequitableand contradictory so as to render it void?

. . . 3).

. . [M]aythe Comptroller continue to use the currentmethod of hourly rate calculation for partial pay, overtime, and leavewithout pay? 4).

. . [M]aythe Comptrolleruse an alternative ' method which involves the same mathematical concept,but is not a "yearly"hourly rate as is demonstrated inAttachment B? It iswell established thatwhere adherence to the strict letter of a lawwould lead to injustice,absurdity, or contradiction, the law shouldbe given a reasonable construction. Magnolia Petroleum Co; 5 Walker, 83 S.W.Zd 929 (Tex.Sup. T935]*~53 Tex.Jur.ZhStatutes 8 165. As your examples indicate,a'strict adherence to section 2(a) can result both in absurd, ridiculous, and unjust consequences and in a violation of theminimum wage provisions of article 5159d,V.T.C.S. We do not believe the Legislature intended section 2(a) to be so applied. To the contrary,we belleve the Legislature intended the questionable and unworkable provisions of section 2(a) to be directory rather than mandatory. See Bishopv. Houston Independent School Dist 29 S.W.Zd 312T I.,

‘ex
. sup. 1930); 53 Tex.Jur. Statutes S 15.FITperintend &e fiscal concerns of the State" should be guided but not bound by the languageof section Z(a). SeeV.T.C.S. art. 4344, 8 3;Attorney General Opinion H-645 (m5]. The Comntroller in the-exercise of his duty m

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The HonorableBob Bullock - page 5 (H-768)

Thus,while section 2(a) is not void, the Comptrollerneed not strictlyadhere to itsprovisions concerning special situations. If upon review of the operation of the procedures contained in section 2(a) the Comptrollerdetermines them to be unworkable, in our opinion he may select other reasonableprocedures for computation of pay in special situations. Accordingly,we answeryour last two questions in the affirmative. SUMMARY

ArticleV, section Z(a) of Senate Bill **52,** Acts 1975, 64th Leg., ch. **743,** p. **2417,** shouldbe construedby the Comptroller as directory. If the procedures established therein are determined to be unworkable, the Comptrollermay select another reasonablemethod fok the calculation of pay in special situations. -Very truly yours, 

# u Attorney General APPROVED: of Texas

Opinion Committee jwb

p. **3245**