The Honorable Bob Bullock Opinion No. ~I-768 

Comptroller of Public Accounts 

Lyndon B. Johnson Building Re: Method by which 

Austin, Texas 78774 salaries of 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 article V, 

section 2(a) of the current appropriations act, Acts 1975, 

64th Leg., ch. 743, p. 2417, which provides in part at page 

2845: 

All annual salaries appropriated by this 

Act shall be paid in twelve (12) equal 

monthly installments, except as otherwise provided in Article II of this Act. 

The equivalent hourly rate of pay 

for annual employees maintaining a 40 

hour work week and covered under Article 

5165a, Vernon's Civil Statutes, as amended, 

shall be determined by dividing the annual 

salary by 2,080. This basis applies to 

partial pay overtime and other special 

situations. When a full-time or regular 

part-time employee is on leave without 

pay I compensation for that particular 

pay period shall be reduced at the equivalent hourly,rate of pay times the number of work hours lost by leave without 

pay. 

p. 3241 
. 

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

You have presented the following examples of the operation 

of this provision: 

EXAMPLES OF SALARY COMPUTATIONS PURSUANT TO 

ART. V 8 2 

All examples are based on an employee. receiving 

a salary of $lZ,OOO.OO annually, $l,OOO.OO monthly 

or $5.71 hourly. 

Calculation for Partial Month's Pay: 

1) An employee who works 22 days during a 

month which has 23 working days will have 

his pay computed as follows: 

22 days x 8 hrs. x $5.77 per hr. = $1,015.52 

or $15.52 more than the $l,OOO.OO he would 

have received for working a full month. 

2) An employee could work 21 Z/3 days during 

a month containing 22 or 23 working days and 

be paid $l,OOO.OO which is as much as an employee who worked the full month. 

21.67 days x 8 hrs. x $5.77 per hr. = 

$1,000.00 

Calculation of Partial Month Due to Employee 

being on LWOP (Leave Without 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. 3242 
The Honorable Bob Bullock - page 3 (H-768) 

2) During a month having 21 working days, an 

employee on LWOP for 19 days will receive 

$122.96 using the negative method: 

$1,000.00 - 19 days x 8 hrs. x $5.77 = $122.96 

If he were to be paid on the partial month positive approach, the calculation would be: 

2 days x 8 hrs. x $5.77 = $92.32 

3) In certain cases such as maternity where an 

employee may be on LWOP for 23 working days of 

a 23 working day month, the calculation would 

be as follows: 

$1,000.00 - 23 working days x 8 hrs. x $5.77 

= -$61.68 

Instead of simply not being paid for the month 

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 theoretically be paid $76.80 even though no work 

was actually performed: 

$1,000.00 - 20 days x 8 hrs. x $5.71 per 

hr. = $76.80 

Positive Partial Month's Pay Calculation compared 

to Negative LWOP Calculation for same Pay Period: 

In a month with 21 working days, an employee working 18 days and terminating would receive the following compensation: 

18 days x 8 hrs. x $5.71 per hr. = $830.88 

An employee who also works 18 days in a month 

with 21 working days and is on LWOP for 3 days 

would receive the following compensation: 

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

$1,000.00 - 3 days x 8 hrs. 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 inequitable and contradictory so as to render it void? 

. . . 

3). . . [M]ay the Comptroller continue to use the current method of hourly rate calculation for partial pay, overtime, and leave without pay? 

4). . . [M]ay the Comptroller use an alternative ' 

method which involves the same mathematical 

concept, but is not a "yearly" hourly rate 

as is demonstrated in Attachment B? 

It is well established that where adherence to the 

strict letter of a law would lead to injustice, absurdity, 

or contradiction, the law should be 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 the minimum 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 Bishop v. 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 language of section Z(a). See V.T.C.S. 

art. 4344, 8 3; Attorney General Opinion H-645 (m5]. 

The Comntroller in the-exercise of his duty m 

p. 3244 
_- - 

The Honorable Bob Bullock - page 5 (H-768) 

Thus, while section 2(a) is not void, the Comptroller need 

not strictly adhere to its provisions concerning special 

situations. If upon review of the operation of the procedures contained in section 2(a) the Comptroller determines 

them to be unworkable, in our opinion he may select other 

reasonable procedures for computation of pay in special 

situations. Accordingly, we answer your last two questions 

in the affirmative. 

SUMMARY 

Article V, section Z(a) of Senate Bill 

52, Acts 1975, 64th Leg., ch. 743, p. 2417, 

should be construed by the Comptroller 

as directory. If the procedures established therein are determined to be unworkable, the Comptroller may select 

another reasonable method fok the 

calculation of pay in special situations. 

-Very truly yours, 

u Attorney General 

APPROVED: 

of Texas 

Opinion Committee 

jwb 

p. 3245