April 24, 1958

Honorable A. C. Spencer Executive Director Texas State Soil ConservationBoard 1112 First National Bank Building Temple, Texas OpinionNo. WW-419
Re: Authority of the State Soil Conservation Board to compensateField Planning Engineers in an amount in excess of the salary scheduleof other employees of the State Soil Dear Mr. Spencer: ConservationBoard.

tion: You have requested our opinion on the following ques-

"For the purpose of fulfilling the responsibilities delegated to the State Soil Conservation Board, in Section3(b) of Senate Bill #l, Acts of the Fifty-fifth Legislature,First Called Session, may the State Soil ConservationBoard pay from unexpended balances for the current biennium (Sept. 1, 1957 - Aug. 31, 1959) an engineers salary that is in excess of salariespaid to other employees of the State Soil ConservationBoard?"
Your request for an opinionhas been supplementedby the following information:

'IThe two Field PlanningEngineers presently employed by the State Soil ConservationBoard are not engineers. They are graduates in the field of Agriculture and work with boards of supervisors of soil conservationdistricts in planningprograms to apply such practices as range management, cover croppingand residuemanagement. They also assist local districts in organizing local people as well as state and federal agencies in carrying out the districts program. This position is in no way similar or comparable to the engineer employed to help develop a Master Plan for Upstream Flood Prevention for Texas.HonorableA. C. Spencer, page 2 (WW-419)

"The employeewhose salary is in question iS a graduate engineerwith 17 years experience in planningand constructingupstream flood prevention structures." The pertinent provisions of House Bill 133, Acts of the Fifty-fifth Legislature,Chapter 385 (GeneralAppropriation Act), contain the following appropriation to the Soil Conservation Board:
"Out of General Revenue Fund:

"For Salaries, Wages and Per Diem---
"1. Board Members, Per Diem ..*...$ 2,500 $ 2,500
32: Executive Director *.0..o.DaOe 7,200 7,200 Field PlanningEngineers, NTE $6,300 .0.0*0.0......... 12,600, 4. Executive Assistant 12,600 *...**.0.. 5,400 5,400 5. Secretary .OeO*OeO.e..O....... 6. Seasonal and Part-timeHelp 0a 39;g 3,;g

"Total! Salaries, Wages and Per Diem oee..oae.e.o.aao.a.$I 32,070 $ 32;070 I,

. 0 e "Any unexpended balances in the reappropriations authorized by the Fifty-fourth Legislature, of funds and properties to the Soil Conservation Districts, are hereby reappropriated for the biennium beginning September 1, 1957, for the purposes provided for under the Soil Conservation Statutes." Section 3(a) and a portion of Section 3(b) of Chapter 11, Acts of the Fifty-fifth Legislature,First Called Session (Water PlanningAct of 1957), providesas follows:

"Sete3 (a). The PlanningDivision shall be under the supervisionand direction of the State Board of Water Engineers, and its functions shall be:

"(4) To enter into contractswith federal, state and local political subdivisionsand agencies including the State Soil ConservationBoardHonorable A. C. Spencer, page 3 (ww-419)

and any other persons, firm or corporationfor topographicmapping, joint investigationand research in the field of water and soil resource planning.
"Sec. 3(b).

. . . "The State Soil ConservationBoard is authorized to appoint a representative to advise and work with the Planning Division; the State Soil ConservationBoard is hereby authorized to use any funds heretofore appropriated for use during the currentbiennium endingAugust 31, 1959, for the purpose of paying the salary, travel expenses and other expenses of the representatives appointed by the Soil Conservation Board."
Under the Water PlanningAct of 1957, the Planning Division of the State Board of Water Engineers is authorized to enter into contractswith the State Soil Conservation Board for topographicmapping, joint investigationand research in the field of water and soil resource planning,and the State Soil ConservationBoard is specificallyauthorized to,expend funds appropriatedby the currentbiennium AppropriationAct for the purpose of paying salaries, travel expenses and other expenses of the representativesappointedby the State Soil ConservationBoard.

Items one through six of the appropriation to the Soil Conservation Board are made for the purposes of paying salarieswhile the remaining items are appropriated for the payment of other expenses. The previousunexpended balance is likewise appropriated to the Soil ConservationBoard as a lump sum. Therefore, it is our opinion that the previous unexpended balance appropriated to the Soil ConservationBoard as a lump sum may be expended for the purpose of paying salaries, travel expense and other expenses of the representatives of the Soil ConservationBoard.

Section 8 of Article VI of the GeneralAppropriation Act limits the compensationthat may be paid employees, providing: "Limitationson use of OtherExpense funds for paying salaries and wages. None of the funds appropriated in Article I, II, and III of this act in items designated for travel expense, other operating expense, for capital outlay or equipment,HonorableA. C. Spencer, page 4 (ww-419)

or for maintenance,miscellaneousand contingent expenses,may be used for paying any salaries and wages unless the language of those items explicitly authorizes such use0

"In those instanceswhere the language of such items does explicitlyauthorize the use of such funds for paying salariesand wages, such employees shallnot be paid a larger amount than that provided inther?gular appropriated salary items for similarpositions in such agency of the State. In the event there are no similar positionswithin such agency, then such employees shallnot be paid a larger amount than that provided for similarwork or positions elsewhere in the State Government. In the event common laborers, skilled laborers, and mechanics cannot be obtained at the salary rates indicated in this paragraph, then the head of such agency of the State may pay for temporary employment only at rates not exceeding the prevailingwage scale paid in the localitywhere temporary service is to be rendered,"
Inview of the provisionsabove quoted, the salaries thatmay be paid from the lump sum appropriationare limited to (1) that provided in the regular appropriated salary items for similarpositions in such agency of the State and (2)that provided for similarpositions elsewhere in the S ate E government. According to your request, the first limitation is inapplicable for the reason that no similarposition existswithin the Soil ConservationBoard, and you state that the position is comparable to the positions set out in Items 5, 8, 9, 14, 21 and 22 of Section IV of Senate Bill I,Acts of the 55th Legislature, First Called Session, Chapter 11, page 23 (Water PlanningAct of 1957). The limitations contained in these items are $9,000 and $8,600 per annum, depending on the particular position. It is, therefore, our opinion that you are authorized to set the salary of the representativesappointed by the Soil ConservationBoard, pursuant to the Water PlanningAct of 1957, at any sum not to exceed $9,000 or $8,600 per annum,whichever is comparable.Honorable A, C, Spencer, page 5 W-419)

SUMMARY
The Soil ConservationBoard is authorized to pswthe salaries of representativesappointed by the 5oil ConservationBoard, pursuant to the Water PlanningAct of 1957, at any sumnot to exceed the salariesauthorized by the Water PlanningAct of 1957 for similarpositions.
Yours very truly,
WILL WILSON Attorney General of Texas

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APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman B. H. Timmins, Jr0 Mary K, Wall W. E. Allen
REVIEWED FOR THE ATTORNEY GENERAL
BY: W, V, Geppert,