# The Attorney ’General ofTexas May7, 1981 MARKWHITE AttorneyGeneral Honorable Ron Jackson Executive Director Texas Youth Council 8900 Shoal Creek Boulevard Austin, Texas 78766 Opinion No. ~~-334 Re: Whether teachers employed by Texas Youth Council are entitled to longevity pay under article 6813d, V.T.C.S. Honorable George W.McNiel The State Auditor Sam Houston Office Building Austin, Texas 78711

Your questions concern article SSlSd, V.T.C.S., and article II, section 2a of House Bill 558, the General Appropriations Act, Acts 1979,66th Leg., ch. 843. Article 68134provides that:

. . .each state employee covered by the Position Classification Act of 1961,each line item or exempt state employee [andI each regular full-time hourly employee of the state.
. .is entitled to longevity pay of a maximum of $4 per month for each year of service as an employee of the state up to and includfng 25years of service. Article II, section 2a, ofthe appropriations act provides as follows:

(a) SALARY PROVISIONS. (1) **EXEMPT** POSITIONS. Positions employed in institutions.

. .of the.

. . Texas Youth Council, which are exempt from the Position Classification Plan, shall be paid at annual salary rates not to exceed those specified in this Section.

. . .

. . . . (5) TEACHERS. Each.

. . classroom -teacher.

. . shall receive as a minimum salary the clessroom or exceptional teachers monthly salary rate, plus increments specified in Senate Bill No. 116,Acts of the Fifty-first Legislature, 1949, as amended [see Public Education Compensation Plan, section 16.056 of the Education Code].

. . .

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Honorable Ron Jackson Honorable George W.McNiel Page Two (Mu-334)

Salary rates in excess of the minimum amounts specified in Senate Bill No. 116.

. . may be paid; but such approved rates shall never exceed the rates ofpay for like pOSitiOnS pard in the public schools of the city in which the State School or Home is located. (Emphasis added) Acts1979,66th Leg., ch. 843, art. II, §2a, at 2540, 43-44. Mr.Jackson asksthe following questions:

1. Are teachers employed by the Texas Youth Council (TYC) state employees for purposes of receiving longevity pay under article 6813d, when they already receive a salary supplement for longevity under the Texas State Public Education Compensation Plan? 2. If they are, may the TYC authorize payment oflongevity pay to a teacher when such payment would result in a higher salary rate than that paid **fcir**like positions in the public schook of the city in which the state school islocated, notwithstanding the provisions of article 11,section 2a(5) of the appropriations act? Mr.McNiel asks these questions:

1. Should the state’s payment of aportion ofthe employee’s share of social security contributions required by Senate Bill No. 20, Acts of the Sixty-fifth Legislature, be considered. in calculating the salary rate of the teacher for comparison with the rates of pay for like positions in the public schook of the city in which the state school islocated? 2: Should the state’s contribution for the employee’s group insurance premiums be included in determining the teacher’s salary rate? We.will address both of Mr. Jackson’s questions at the same time. First, this office has previously held that TYC teachers are state employees for purposes of receivingpay for accrued vacation time, Attorney General Opinion H-829 fl976), and sick leave, Attorney General Opinion H-775 (1976). While those opinions dealt with provisiorw of the 1975appropriations act, wepemeive nobasis for reaching a different conclusion with respect to whether they are%tate employees” within article 6813d. Wetherefore conclude that, inasmuch as their positions are exempt from the Position Classification Plan, s article II, section 2(a)(l) of the 1979General Appropriations Act, TYC teachers are “exempt state employees” within article 6813d and are therefore eligible for longevity pay under that provision.

p. 1083Honorable Ron Jackson

Honorable George W.McNiel Page Three (~~-334)

You ask whether the TYC may authorize payment of longevity pay ~toa TYC teacher “when such payment would result in ahigher salary rate than that paid for like positions in the public schools of the city in which the state school islocated.” If, as your question assumes, a TYC teacher’s “salary rate” would in fact be increased by the addition of such longevity pay, wewould answer this question inthe negative. It isour opinion, however, that a TYC teacher’s “salary rate”, as that term isused inarticle II, section 2a of the appropriations act, is computed on the basis of the k.salary paid the teacher. Longevity pay which a TYC teacher receives pursuant to artrcle 6813dis not part of that base salary, and, therefore, is not to be considered when calculating the teacher’s “salary rate.” See General Appropriations Act, Acts 1979,66th Leg., ch. 843, art 11,S18, at, 2555, (ahod for computing TYC teacher’s salary rates). We therefore conclude that a TYC teacher may receive longevity pay under article 6813d without violating article II,section 2a(5) ofthe 1979General Appropriations Act. We now turn to Mr. McNiel’s questions. Article 695h, V.T.C.S., sets forth provisions governing federal old age survivors’ insurance coverage for state employees and defines the state’s obligations with respect to contributions on behalf of state employees under that program. Article 3.51of the Insurance Code authorizes the state and its agencies to procure contracts with licensed insurance companies for purposes of insuring employees. Section l(a) thereof provides that premiums may be paid in whole or in part from funds contributed by the employer and/or by the insured employees. Contributions made by the state on behalf of its employees under article 69511, V.T.C.S., and article 3.51of the Insurance Code undeniably constitute a benefit which the employee receives by virtue of his employment. However, we are here concerned only with the question of whether said contributions are to beconsidered in calculating a TYC teacher’s salary rate for purposes of comparing that rate to the salary rate established for a like position” in the public schook of the city in which the TYC facility islocated. Weanswer that question in the negative. Unlike article 3.51of the Insurance Code, article 695h expressly provides that contributions made by the state are not to be considered compensation under any law of this state. See V.T.C.S. art. 695h, S4. This provision, standing alone, would appear to answer youiirst question. However, even if article 695h contained no such provision, we would conclude that contributions made ,bythe state under that statute, like those made under article 3.51of the Insurance Code, should not be considered in computing a TYC teacher’s salary rate. They do not constitute additions to the employee’s base salary. In our opinion, the legislature intended that, ~forpurposes **of** calculating a TYC teacher’s “sslary rate” under the 1979General Appropriations Act, only those amounts included inthe teacher’s base salary should be considered. SUMMARY Teachers employed by the Texas Youth Council may receive longevity pay under article 6813d, V.T.C.S., without violating

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Honorable George W.McNiel Page Pour (Mu-3341

the provisiorm of article II, section 2a(51 of the 1979General Appropriations Act. Ccntributions ma& by the state on behalf of a TYC teacher for purposes ofsocial security andemployees group insurance premiums are not to be considered in calculating that teacher’s salary rate for purposes of article II, section 2a(5) of the act. Very truly yours,

MARK WHITE Attorney General ofTexes JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD E.GRAY III Executive Assistant Attorney General Prepared byJon Bible Assistant Attorney General APPROVRD: OPINION COMMITTEE Susan L.Garrison, Chairman Jon Bible Rick Gilpin Edna Ramon Bruce Youngblood

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