# The Attorney General ofTexas
March 16, 1981 MARK WHITE Attorney General Honorable John J. Kavananh. M.D. Ooinion No. NW-305 Commissioner Texas Department ofMental Health Re: Whether the Department of and Mental Retardation Mental Health and Mental RetardaP.0. Box12668 Austin, Texas 76711 tion may change classified employees to hourly employees and pay them onasemi-monthly basis Dear Dr. Kavanagh: You have asked whether the Texas Department of Mental Health and Mental Retardation has the authority to remove the majority ofits salaried employees from the State Position Classification Plan byconverting them to hourly employees and, if not, what legal authorization wouldberequired for such aconversion. Youask further whether MH/MRhas the authority to pay the majority of its employees on abiweekly basis rather than on a monthly basis ifthose employees are converted to hourly employees. Section 2of article 6252-H, V.T.C.S., the Position Classification Act, provides, inpertinent part, that:

All regular, fulptime salaried employments within the departments and agencies of the State.

. . shall conform with the Position Classification Plan.

.. and with the salary rates andprovisions ofthe Appropriations Act.

...

. . . . Specifically excepted from the Position Classification Plan.

. . are. .. hourly employees, part-time, and temporary employees; and such other positions in the State Government as have heretofore been or as may hereafter be excluded from such Position Classification Plan byexecutive order of the Governor or bydirection ofthe Legislature. The General Appropriations Act reflects the fact that a very large number of oersons are emoloved bv the deoartment as full-time, classified employees. ‘See General A’ppiopriations Act, Acts 1979,66th Leg:, ch. 643, art. 11,S20,a-2556.

P. 972Honorable John J. Kavanagh - Page Two (MW-305

Anadministrative agency has only those powers expressly conferred bystatute or derived from express powers, Railroad Commission v. Red Arrow Freight Lines, 96 S.W. 2d 735 (Tex. Civ. App.- Austin 1936, writ refd). An Appropriations Act rider applicable to the department gives it some authority to use appropriations for classified positions to pay hourly employees:

It is further provided that appropriations for salaries of classified positions may be used to pay the wages of hourly workers when the utilization of such personnel is in the best interest ofaneconomical and efficient program. General Appropriations Act, Acts 1979,66th Leg., ch. 643, art II, S2(4),at 2543. This larrguage gives the agency some limited authority to shift funds from classified to hourly positions. Wedonot believe it empowers the Department ofMH/MRto remove the majority of its salaried employees from the State Position Classification Plan by converting them to hourly employees. In order to exercise such comprehensive authority the department would need express legislative authorization or an executive order from the governor. Article 6626, V.T.C.S., provides that, “Annual salaries provided for in this title shall be paid monthly on warrants drawn by the Comptroller or the Treasurer.” The word “title” in article 6626, V.T.C.S., refers to title 117,which concerns the salaries of state officers and employees. The General Appropriations Act provides, in pertinent part, that: All annual salaries appropriated bythis Act are for full-time

employment unless specifically designated aspart-time orother and shall bepaid intwelve (12)equal monthly installments

... Art. V, S2(a). Classified employees are annual employees and thus are subject to this provision. See General Appropriations Act, Acts 1979,66th Leg., ch. 643, art. V,.Sla, at 2892. Wxelieve, however, that hourly compensation isto bedistinguished from sn annual salary, and that persons receiving hourly salaries are not subject to the above limitations on annual salaries. They may therefore bepaid on some other basis, such asbiweekly payment. SUMMARY

The Texas Department of Mental Health and Mental Retardation does not have the power to remove the majority of its salaried employees from the State Classification Plan by converting them to hourly employees. Such authority must be specifically granted to the Texas Department of Mental Health and Mental Retardation by the legislature orbyexecutive order of the governor. The Texas Department of Mental Health and Mental Retardation does have the authority to pay employees receiving hourly compensation on a biweekly or semi-monthly basis.

P. 973. - Honorable John J. Kavanagh - Pege Three (MW-305)

MARK WHITE Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD E.GRAYIll Executive Assistant Attorney General Prepared bySusan Garrison Assistant Attorney General APPROVED: OPINION COMMlTTEE Susan L.Garrison, Chairman Jon Bible Lucius Bunton Rick Gilpin

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