The Attorney General of Texas 

March 16, 1981 

MARK WHITE 

Attorney General 

Honorable John J. Kavananh. M.D. Ooinion No. NW-305 

Commissioner 

Texas Department of Mental Health Re: Whether the Department of 

and Mental Retardation Mental Health and Mental RetardaP. 0. Box 12668 

Austin, Texas 76711 

tion may change classified 

employees to hourly employees and 

pay them on a semi-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 of its salaried 

employees from the State Position Classification Plan by converting them to 

hourly employees and, if not, what legal authorization would be required for 

such a conversion. You ask further whether MH/MR has the authority to pay 

the majority of its employees on a biweekly basis rather than on a monthly 

basis if those employees are converted to hourly employees. 

Section 2 of article 6252-H, V.T.C.S., the Position Classification Act, 

provides, in pertinent 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 and provisions of the 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 by executive order of the Governor or 

by direction of the 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. 972 
Honorable John J. Kavanagh - Page Two (MW-305 

An administrative agency has only those powers expressly conferred by statute 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 of an economical 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. We do not believe it empowers the Department of MH/MR to 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 by this Act are for full-time 

employment unless specifically designated as part-time or other 

and shall be paid in twelve (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 is to be distinguished from sn 

annual salary, and that persons receiving hourly salaries are not subject to the above 

limitations on annual salaries. They may therefore be paid on some other basis, such 

as biweekly 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 or by executive 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 of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY Ill 

Executive Assistant Attorney General 

Prepared by Susan Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMlTTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Lucius Bunton 

Rick Gilpin 

p. 974