### EATE-OECNETT ,GENE OF XAS

October 

### 6, 1961

Honorable William J. Burke Opinion No. WW-1159 Executive Director StateBoard of Control Re: Constructionof House Austin,Texas Bill 189, 57th Legislature, and the classificationplan in reference to certain employees of the San Jaclnto State Park who wereheretofore Dear Mr. Burke: paid on a dally basis.

You have requested this office for an opinion on the questions of:

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. . . (1) Should-employeeswho have been on the payroll as regular employees of the San Jacinto Park Commissionand paid on a faily rate from the appropriation item titled Wages and Extra Help' (H.B. 4 who now under the provisions of House Bill 1c4 9 and the classificationplan are classified as 'Laborers"with job specification9003 be broughtunder the provisions of the classificationplan and the salary scheduleas regular employees on the payroll as of August 

### 31, 1961and thereby entitled to computation of annual salary bates In keeping with the provisions of House Bill 189, Section 2, paragraph 

### 3? "(2) If your answer to question one (1)above is in the affirmative, should an employee furloughed for two weeksdue to a lack of funds in the 'Wages'account (H.B. 4), a situationbeyond the control of the San Jacinto Park Commissionand the employee, be returned to and continued on the park payroll as of September 1, 1961 as a regular employee and his salaryunder the classification plan established in keeping with the languageand intent of paragraph three 

### (31, Section two (2) of H.B. 189, 57th Legislature,Regular Session?"HonorableWlliam J. Burke, page 2 @W-1159)

The nature of the the setting out the factual questionsposed necessitates background. Four of the employees of the San Jacinto State Park, under the provisions of SenateBill 1, Actsof :he 57th Legislature, 1st Called Session, and House Bill 189, Acts of the 57th Legislature,Regular Session, Chapter 123,page 238, the Position ClassificationAct of 1961, have been classified as "Laborers"with job specificationof 9003. These four employees,while compensatedpreviously on a daily rate basis rather than an annual salarybasis, have been regularly employedby the San Jacinto Park for periods of time ranging from two (2) to seven (7) years. The annual earnings for these four employees for theyear ending August 31, 1961, even thoughpaid on a daily rate basis, and their contributi.ons to the Employees RetirementFund are set forth as follows::

"Employee A Retirement

For the biennum commencingwith the 1st day of September, 1951, and ending on the 31st day of August, 1961, these four employeeshave been compensated from funds appropriated to the San Jacinto State Park pursuant to ,the

provisions of House Bill 4, Acts of the 56th Legislature, 3rd Called Session, Chapter 23,page 562, the General AppropriationBill, under the allocation of "Wagesand Extra Help."

The Comptroller of Public Accountshas raised the question of whether or not these four employees fall within the provisions of Section 2 of House Bill 189 whichprovide that:

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. . . Specificallyexempted from the Position ClassificationPlan hereinafter described are . . .hourly employees,part-t$me and temporary employees.

. . . , and thereby are now consideredas new employees and thus subject to the provisions of Section 13 of Article III of Senates Bill 1 whichprovide that:
"B. Hiring Policies. (1) New employees will be startedat the minimum salary of.

Honorable William J, Burke, page 3 (WW-1159)

the range to which the position is assigned;'a e Q While the four employees involved in the instant case have heretoforebeen employed by the San Jacinto State Park on a daily rate basis3 House Bill 4 containedno provisionmaking this method of compensation necessary. Such employees could have been employedby the San Jacinto State Park on an annual salarybasis rather than a daily ratebasis, and the only limitationplaced upon the San Jacinto State Park was the availability of appropriated funds in the "wages and Extra Help" fund from which these four employees were paid.

As these four employeesare not hourly employees,and in turn couldnot be consideredparttime or temporary employees in view of theirpast employment with the San Jacinto State Park, but in actuality were regular, full-timeemployees of the San Jacinto State Park,~such employees would not fall within the exemption from the Position ClassificationPlan found in Section 2~ofHouse Bill $39.

Such being the case and in view of the provisions of Dararrraoh three (3)of Section 2 of House Bill 189 which &?ovide that;-'

"It is furtherprovided,however, that emn se presently emDloved& t& St%e ih%? 2 Paid less throumh aPDlication of this Act than the salaryhg received& accordancewith theprovisions of HouseBfll No. mActs

-- rthe Fifty-sixth Legislature,Third Called Session, 1959, or the minimum of the appropriate salary range specified in the GeneralAppropriations Act effective September 1, 1961, whichever is the higher, so long as said employee remains in such classified position under the Positiot Classification Plan."~ (Emphasisadded)
We are of the opinSon that the four employees

-_. L"._

_ in the instant case WOUCL oeentitlecito compensation, in their classificationas "Laborers"with iob speoification of 9003, in an annual amount of not less t13n the total compensation they had received on a daily rate basis during,the period commencingSep,tember 1, 1960 and ending August 319 1961..

HonorableWilliam J. Burke, page 4 (WW-1159)

Your first questionbeing answered in the affirmative, this then raises the question of whether or not one of these employeeswho had been furloughed for a period of two weeks at the end of the biennum due to a,,lack

of available funds in the "Wagesand Extra Help account, will be compensatedpursuant to the provisions of Section 2 of House Bill 189 or whether the followingprovisions of Section B of Article III of Senate Bill 1 are applicable:

"(3) ReinstatedEmployees. An employeewho leaves state employment due to illness or some other circumstance and returns to his same position in state employmentat a laterdate, may be reinstated to his formerposition at the salary ratehe had whenhe left state employment, provided it shallnot exceed the maximum rate of the prescribed salary group. If tiiisformer rate exceeds the maximum of the range in the prescribed salary group then the position shallbe paid at not more than the maximum."
We are of the opinion that an employeewho had been temporarily furloughedunder these circumstances set forthherein has not left State employment wi?Wi.n

the sense contemplatedby SectionB(3) of Article III of SenateBill 1, and therefore could be returned to the payroll of the San Jacinto State Park on September 1, 1961, and compensatedpursuant to the provisions of paragraph three (3) of Section 2 of House Bill 189, and in an amount of not less than the rate of compensationhe had receivedduring the period commencing September 1, 1960 and ending August 31, 1961.

SUMMARY The four employees of the San Jacinto State Park in the instant case are entitled to compensation in an amount of not less than the rate of compensation they had received on a daily rate basis, during the period commencing September 1, 1960 and ending August 31, 1961.
The employee in the instant case who had been temporarily furloughedHonorableWilliamJ. Burke, page 5 (WW-1159)

has not left State employmentwithin the sense contemplatedby Section B(3) of Article III of SenateBill 1 and could be returned to the payroll of the San Jacinto State Park on September 1, 1961, and compensatedpursuant to the provisions of paragraph three (3) of Section 2 of House Bill 189.

Yours very truly,
WILL WILSON Attorney General of Texas

PB:lgh

APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman By:Assistant

Bob Eric Shannon Jack Goodman ColmanGay III Harry Hewell
REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.