### l%m A~~J~RNEP OFTEXAS 

### GENERAL

Honorable John C. White Commissioner of Agriculture Capitol Building Austin 11,Texas Opinion No. WW-1317
Re: Whether an appointment to an unclassified seasonalposition disqualifies such appointee for later appointment to a classifiedposition at a rate of pay not to exceed the midpoint, providedhe has "marked Dear Mr. White: ly superior qualifications.”

We are in receipt of your:request for opinion on the above question.

In regard to employees In your Department we quote from your letter as follows:

“Severalappl,lcants having ‘superiorquallfications’have been employed in seasonalpositions. Some of these, after severalmonths of duty In suchpositions, have been appointed to classified positions at salariesabove the minimum because they not only have ‘superiorqualifications’but have demonstrated superiorperformance as well. We have considered these individuals ‘newemployees’ insofar as classifiedpositions are concerned. In connectionwith our March payroll the Comptrollers’ Office has questioned such appointments.
“We respectfullyrequest **your** opinion on the following question:
“Doesappointment to an unclassified seasonal position disqualify an applicant for later appointment to a classifiedposition at a rate not to exceed the mid-point,proyidedhe has ‘markedly superior qualifications?’ The Position ClassificationAct of **1961,** codified as Article 6252-11 of Vernon's Civil Statutes states in part as follows:Honorable John C. White, Page 2 (W-1317)

"Sec. 2. All regular, full-time salaried emoloyments within the departments and agencies of the State specified In Article III
. . . of the biennial Appropriations Act shall conform with the Position Classification Plan hereinafterdescribed and with the salary rates and provisions of the applicableAppropriations Act commencingwith the effectivedate of this Act &$& the exceptions anti defermentshereafter wrovlded in this Section. II

. . * "Specificallyexcepted from the Position Classification Plan hereinafter described are . . .hourly employees,Dart-time,and temporary emnlovees;

. . .' IEmphasis added) The above language Indicates to us that seasonal employees would not be considered regular or full-time salaried employees, but would be part time or temporary employees, and as such were specificallyexcepted from the provisions of the Position ClassificationAct of 1961.

Bill part SubdivisionB of Section 1 of Article III of Senate 1, Acts. 57th Leg., 1st C.S. 2 19 1, Ch. 62, p. 203 states In as follows at page 381:
"B
. Hiring policies. (1)New Employees. New employeeswill be started at the minimum salary of the range to which the position Is assigned;however, the department head is authorized to employ below the prescribed minimum during the periods of trainingnot to exceed six (6)months. "(2)Application of Mid-Point. If the aoolicant has qualificationsmarkedly superior to the minimum desired reaulrements of the position. the departmenthead may set the salary of the position at not more than the mid-point of the assigned salary range. Notification of this action will be made to the ClassificationOfficer. Consideration may be given to past experience of the employee in other statedepartments or agen$les in determinin the salary level of employment. (Emphasisadded7 Since seasonal or temporary employees are not subject to the Position ClassificationAct of 1961, it follows from the above langiage that such employees are to be considered 'new employees, if appointed to a classifiedposition, and, if they possess "markedly superior"qualifications,you may place theirHonorable John C. White, Page 3 (WW-1317)

salary at not more than the mid-point of their respective salary ranges. The Comptroller of Public Accounts Is authorized to issue warrants for their newly-designated salaries. Your question propounded to us is therefore answered negatively.

SUMMARY Seasonal or temporary employees are not subject to the Position ClassificationAct of 1961, and therefore may be considerednew employees if appointed to a classifiedposition. Such employeesmay be placed at not more than the mid-point of their salary range If they posses markedly superior quallfications.
Yours very truly,
WILL WILSON Attorney General of Texas 

# By:Fred D. Ward AssZstant FDW:jkr APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman John Reeves Arthur Sandlin Joseph Trimble Elmer McVey REVIEWED FOR THE ATTORNEY GENERAL By: Houghton Brownlee, Jr.