ATTORNEY GENERAL OF TEXAS GREG ABBOTT



### Major General Jose Mayorga Adjutant General ofTexas Post Office Box 5218 Austin, Texas 78763-5218

Dear Major General Mayorga: August 24, 2009

Opinion No. GA-0736
Re: Whether the Adjutant General and the Assistant Adjutants General may accrue state compensatory leave (RQ-0796-GA)

You seek our opinion on whether the Adjutant General and the Assistant Adjutants General may accrue compensatory leave. 1 

### Yourrequestresults from an investigation and report bythe State Auditor's Office ("SAO") confirming the use ofstate emergency leave by senior members ofthe Adjutant General's Department ("Department") while serving on federal military orders. 2 

### See attachment to Request Letter

- State Auditor's Office, An Investigative Report on The Adjutant General's Department at 1 [hereinafter "SAO Report"]. The SAO Report recommends that the Department 

### "[0]btain a legal determination from the Office ofthe Attorney General regarding the accruing ofcompensatory leave by the Adjutant General and the Assistant Adjutants General as the head ofan agency and as appointed officials." 

### Id at 7.
We first examine statutory provisions pertaining to the Adjutant General and the Assistant Adjutants General. The "adjutant general is the head ofthe adjutant general's department and controlsthemilitary department ofthe state." TEx. GOV'TCODEANN. 

### §431.022(a) (Vernon2005). His authority is subordinate only to the Governor in "matters pertaining to the military department ofthe state and the state military forces." 

### Id; see also id. 

### § 431.001(3)-(4) (Vernon Supp. 2008) (defining "state militaryforces" and "TexasNational Guard" so thatthe state's military includes the Texas Army National Guard, the Texas Air National Guard, and the Texas State Guard).

lSee Request Letter at I (available at http://www.texasattorneygeneral.gov).
2The SAO Report indicates that "general officers within the Department's command group .... received full state compensation while serving on active duty on federal military orders" because of state emergency leave. SAO Report at 1. The SAO Report indicates that the Department's general counsel "issued an opinion concluding that the practice was not compatible with state law." Id at 5. The Department conducted an internal audit to calculate the amount ofstate salary to be repaid and used a formula that replaced an individual's emergency leave hours used with the individual's accrued annual and compensatory time balances. See id. at 6 (calculating repayment formula for Adjutant General using 425 hours ofcompensatory leave). The SAO Report questioned the use ofcompensatory time inthe formula and, citing subsection 659.024(c) of the GovernmentCode, assertedthatthe "repaymentcalculations may be understated because these positions may not be entitled to earn compensatory leave." Id at 6.Major General Jose Mayorga

- Page 2 (GA-0736)

Chapter 431 also provides for two Assistant Adjutants General. 

### See id. 

### § 431.026. An Assistant Adjutant General for army and an Assistant Adjutant General for air are appointed bythe Governor on the recommendation ofthe Adjutant General. 

### See id. 

### § 431.026(a). The Assistant Adjutants General "shall aidthe adjutant general byperfonning assigned duties." 

### Id. 

### § 431.026( d). The Assistant Adjutant General senior in rank "shall perfonn the duties ofthe adjutant general" in the event that theAdjutant General is "dead, absent, or unable to act." 

### Id. Chapter 659, Government Code, contains provisions concerning compensation for public officers and employees. 

### See generally TEx. GOy'T CODE ANN. 

### §§ 659.001-.308 (Vernon 2004 & Supp. 2008). In particular, subchapter B ofchapter 659 authorizes a state employee's accrual of overtime compensation and compensatory time. 

### See id. 

### §§ 659.015 (Vernon 2004) (overtime compensationfor employees subjectto FairLaborStandardsAct), 659.016 (overtime compensation for employees not subject to FLSA), 659.023 (providing compensatory time policy). Relevant to your question, subsection 659.024(c) is an exception providing that "[a] member ofthe governing body of a state agency or a single state officer who governs a state agency may not accrue compensatorytime underthis subchapter [B] or another state statute." 

### Id. 

### § 659.024(c). Subsection 659.024( c) applies by its express tenns to "amember ofthe governing body ofa state agency" or "a single state officer who governs a state agency." 

### Id. 

### § 659.024(c). As the Department is notrunby a governing body, the operative language is "a single state officer who governs a state agency." 

### Id. 

### §§ 659.024(c) (Vernon 2004),431.022 (Vernon 2005) (providing that the Adjutant General is "the head ofthe adjutant general's department").
Because section659.024 doesnotdefinethephrase "asingle state officerwho governs a state agency," we must construe the phrase to detennine whether the Adjutant General or the Assistant Adjutants General fall within its scope. 

### Id. 

### § 659.024 (Vernon 2004). "[T]he Texas Supreme Court explainedthatthe detennining factor thatdistinguishes onewho hold a public'office' from onewho merely holds public employment is whether any sovereign function ofthe government is conferred upontheindividual to be exercised

...forthebenefit ofthe public largelyindependent of the control ofothers." 

### State exreI. Hillv. Pirtle, 887 S.W.2d921,931 (Tex. Crim. App. 1994) (enbanc) (citing 

### AldineIndep. Sch. Dist. v. Standley, 280 S.W.2d 578,583 (Tex. 1955»; 

### see also Prieto BailBonds v. State, 994 S.W.2d316,320 (Tex. App.-EIPaso 1999,pet. refd) (using

### Aldine standard); 

### butsee TEx. GOy'T CODE ANN. 

### § 659.003(a) (Vernon 2004) (defining "officer" for limited purposes of section authorizing officer to decline compensation). The tenn "govern" commonly means to "conduct the policy, actions, and affairs of(a state, organization, or people)." THE NEW OXFORD AMERICAN DICTIONARY 734 (2001); 

### see also TEx. GOy'TCODEANN. 

### § 311.011(a) (Vernon 2005) (providing that "[w]ords and phrases shall be read in context and construed according to the rules ofgrammarandcommonusage"). Finally, a "state agency" for purposes ofsection 659.024 includes a "department

... in the executive branch of state government" that is created by state law. TEx. GOy'TCODE ANN. 

### §§ 658.001 (2) (Vernon 2004), 659.024(a) (utilizing definition of"state agency" in subsection 658.001(2». Basedonthese definitions, we construe the phrase "asingle state officer who governs a state agency" to refer to an individual who exercises a sovereign function ofthe governmentfor thebenefit ofthepublic largelyindependentofthe control ofothers andwho directs and controls the policy, actions, and affairs of a department in the executive branch ofthe state government that is created by state statute.

### Major General Jose Mayorga

- Page 3 (GA-0736)

With this construction of subsection 659.024(c), we turn 

### to your question. The Adjutant General is 

### "the head ofthe adjutant general's department" and thus is in control ofthe military of the state. 

### Id §431.022(a)(Vernon2005)(emphasisadded). 

### CfFischerv. Reissig, 143 S.W.2d 130, 131 (Tex. Civ. App.-Austin 1940, writ refd) (construing the article "the" to mean "one"). Moreover,the Adjutant General has exclusive authority over armories, facilities, andimprovements owned by the State on Department property. 

### See TEx. GOV'T CODE ANN. § 431.0291(a) (Vernon Supp.2008). Control ofthe state's military and its facilities is a sovereign function ofgovernment that is for the benefit ofthe public. The Adjutant General exercises his power and discretion with respect to the state military 

### largely independent of the control of others. 

### See id § 431.022(a) (Vernon 2005) (providingthat the Adjutant General is head ofthe Department and subordinate to only the Governor). We therefore believe the Adjutant General is, under the 

### Aldine standard, an officer-Le, an individual who exercises a sovereign function ofthe government for the benefit of the public largely independent ofthe control ofothers. 3 

### Chapter431 identifies the Adjutant General as the "head ofthe Department," thus it is the Adjutant General who controls the policy, action, and affairs of, and so governs, the Department. 

### See id § § 431.022(a) ("The adjutant general is the head ofthe adjutant general's department.

..."),431.029 (identifying duties ofthe Adjutant General). Finally, the Department is a department inthe executive branch ofthe state government created by state statute andthus a "state agency"under subsection 659.024( c). 

### See id § 431.021 (Vernon Supp. 2008) (identifying the Department as the Adjutant General's Department). For these reasons, we conclude that the Adjutant General is a "single state officer who governs a state agency" precluded by subsection 659.024(c) from accruing compensatory time.
OurconclusionthattheAdjutant General is a 

### "single state officerwho governs"theAdjutant General's Department under subsection 659.024( c) necessarily precludes a conclusion that the two Assistant Adjutants General are also within the scope of subsection 659.024(c). Accordingly, we conclude that subsection 659.024(c) does notprohibit an Assistant Adjutant General from accruing compensatory leave.

3Because the adjutant general is a state officer and not an employee under Aldine, subsection 659.024(b), Government Code, does not apply.

### Major General Jose Mayorga

- Page 4 (GA-0736)



### SUMMARY The Texas Adjutant General is a single state officer who governs a state agency and is, therefore, precluded by subsection 659.024(c), Government Code, from accruing compensatory time. The same subsection does not preclude the Assistant Adjutants General from accruing compensatory time.

ANDREW WEBER First Assistant Attorney General JONATHANK. FRELS Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Charlotte M. Harper Assistant Attorney General, Opinion Committee