Honorable David Wade, M.D. Opinion NO. M- 1155 

Commissioner, Texas Department of 

Mental Health and Mental Retardation Re: Authority, if any, 

P. 0. Box 12668, Capitol Station of Texas Department 

Austin, Texas 78711 of Mental Health and 

Mental Retardation 

to make payment in 

cash to its employees 

who are subject to 

the federal Fair 

Labor Standards Act 

for authorized overtime, and related 

Dear Dr. Wade: questions. 

In your recent request for an opinion of this office, 

you submitted the following questions: 

"1. Is the Texas Department of Mental Health 

and Mental Retardation authorized to make payment 

in cash to its employees who are subject to the 

provisions of the Fair Labor Standards Act for 

authorized overtime? 

"2 . Is the Texas Department of Mental Health 

and Mental Retardation authorized to make payment 

in cash to the appropriate person for authorized 

overtime properly accrued to an employee at the 

time of his death or separation from employment 

with this Department? 

"3 . If the answer to the aforesaid questions 

is in the affirmative, then from what appropriated 

funds may such cash payments be made?" 

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Honorable David Wade, M.D., page 2, (M-1155) 

Your first question is answered in the affirmative. 

Article III, Section 44 of the Texas Constitution provides, in part, that 

"The Legislature shall . . . /InotJ grant, by 

appropriation or otherwise, any amount of money out 

of the Treasury of the State, to any individual, on 

a claim, real or pretended, when the same shall not 

have been provided for by pre-existing law." 

Pre-existing law for the payment of base salary plus 

overtime for your employees covered by the provisions of the 

Fair Labor Standards Act is supplied by the 1966 amendments to 

that Act. See Attorney General's Opinion No. M-341 (1969). 

The authority for paying overtime in cash is provided 

in Article V, Section 2, Subdivision d, of the current General 

Appropriations Act (S.B. 11, Acts 62nd Leg., R.S. 1971, as 

amended by S.B. 7, 62nd Leg., 1st C.S., 1971, P. V-32, 3793). 

Subdivision d reads, in part, as follows: 

II . . . . Provided, however, that any agency or 

institution, subject to the Fair Labor Standards Act, 

as amended, is authorized to reimburse employees for 

all authorized overtime by granting compensatory time 

as specified above or by paying money from funds 

appropriated by this Act at the rate of 1% times the 

regular rate for the overtime performed." 

Your second question is answered in the affirmative. 

The authority to make payment in cash is set out in our answer 

to your question No. 1. Your question asks whether you have 

authority to include payment for authorized overtime properly 

accrued at the time of death or separation of the employee 

from employment with the department. 

Overtime pay is not a separable stipend. It is part 

and parcel of the compensation called for in the employee's 

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: 

Honorable David Wade, M.D., Page 31 (M-1155) 

contract, and is properly payable, if accrued, at the time the 

base pay is paid. The employee has a vested right in overtime 

pay the moment it accrues under his contract of employment. 

Your third question brings into consideration Section 6 of Article VIII of the Texas Constitution. That section 

provides that no money shall be drawn from the Treasury but in 

pursuance of specific appropriation made by law. 

In our opinion the necessary specific appropriation 

for overtime pay is provided by the same appropriation that 

provides for regular pay of the employee. The designation 

given this sum will no doubt vary from institution to institution. Each employee's warrant, including his overtime, should 

be charged to that fund. 

See National Biscuit Co. v. State, 135 S.W.2d 687, 

page 693 (Tex.Sup. 1940). wherein it was said: 

"As just stated, one of the provisions of 

Section 6 of Article 8 of our Constitution requires all appropriations of money out of the 

State Treasury to be specific. It is settled 

that no particular form of words is required :o 

render an appropriation specific within the 

meaning of the constitutional provision under 

discussion. It is sufficient if the Legislature 

authorizes the expenditure by law, and specifies 

the purpose for which the appropriation is 

made. . . ." 

Conceivably an institution which had not planned 

on paying in cash for overtime might run low on funds in the 

item to which salary and bvertime are charged. There is some 

measure of relief in Article II, Section 15, Subdivision c, 

of the Current General Appropriation Act (S.B. 11, Acts of 

62nd Leg., R.S. 1971, as amended by S.B. 7, 62nd Leg., 1st 

C.S. 1971, P. 11-48, 3489), which reads as follows: 

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Honorable David Wade, M.D., page 4, (M-1155) 

“C . It is the intent of the Legislature that 

the appropriations made herein to the Department 

of Mental Health and Mental Retardation and to 

institutions and agencies under its jurisdiction 

shall be expended as nearly as practicable for the 

purposes specified; however, upon a finding by the 

Board of Mental Health and Mental Retardation that 

any funds in excess of the needs for which they 

were appropriated could be used more efficiently 

and effectively for other purposes for which 

appropriations have been made, said Board is hereby 

authorized to transfer any such excess from one 

item of appropriation to another. 

"It is provided, however, that no such transfer shall be made from appropriations for salaries 

of classified positions." 

------- SUMMARY 

The Texas Department of Mental Health and 

Mental Retardation is authorized to make payment 

in cash to its employees who are subject to the 

provisions of the Fair Labor Standards Act for 

authorized overtime. 

The Texas Department of Mental Health and 

Mental Retardation is authorized to make payment 

in cash to the appropriate person for authorized 

overtime properly accrued to an employee at the 

time of his death or separation from employment 

with this Department. 

Payment of overtime shall be made from the 

same fund or account to which appropriation is 

made for payment of the employee's base pay. 

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Honorable David Wade, M.D., page 5, (M-1155) 

truly yours, 

ey General of Texas 

Prepared by James S. Swearingen 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

John Reeves 

Michael Stork 

S. J. Aronson 

Robert Lemens 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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