EATE-OECNETT ,GENE 

OF XAS 

October 6, 1961 

Honorable William J. Burke Opinion No. WW-1159 

Executive Director 

State Board of Control Re: Construction of House 

Austin, Texas Bill 189, 57th Legislature, and the classification plan in reference 

to certain employees of 

the San Jaclnto State 

Park who were heretofore 

Dear Mr. Burke: paid on a dally basis. 

You have requested this office for an 

opinion on the questions of: 

II 

. . . (1) Should-employees who have been 

on the payroll as regular employees of the 

San Jacinto Park Commission and 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 1 c4 9and the 

classification plan are classified as 

'Laborers"with job specification 9003 be 

brought under the provisions of the classification plan and the salary schedule as 

regular employees on the payroll as of 

August 31, 1961 and 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 weeks due to a 

lack of funds in the 'Wages' account (H.B. 

4), a situation beyond the control of the 

San Jacinto Park Commission and the employee, 

be returned to and continued on the park 

payroll as of September 1, 1961 as a regular 

employee and his salary under the classification plan established in keeping with the 

language and intent of paragraph three (31, 

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

The nature of the 

the setting out the factual 

questions posed necessitates 

background. Four of the 

employees of the San Jacinto State Park, under the provisions of Senate Bill 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 Classification Act of 1961, have been classified 

as "Laborers" with job specification of 9003. These 

four employees, while compensated previously on a daily 

rate basis rather than an annual salary basis, have been 

regularly employed by the San Jacinto Park for periods of 

time ranging from two (2) to seven (7) years. The annual 

earnings for these four employees for the year ending 

August 31, 1961, even though paid on a daily rate basis, 

and their contributi.ons to the Employees Retirement Fund 

are set forth as follows:: 

"Employee 

A 

Retirement 

For the biennum commencing with the 1st day of 

September, 1951, and ending on the 31st day of August, 

1961, these four employees have 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 Appropriation Bill, under the allocation of "Wages and Extra Help." 

The Comptroller of Public Accounts has raised 

the question of whether or not these four employees 

fall within the provisions of Section 2 of House Bill 

189 which provide that: 

II 

. . . Specifically exempted from the 

Position Classification Plan hereinafter described are . . . hourly 

employees, part-t$me and temporary 

employees. . . . , 

and thereby are now considered as new employees and 

thus subject to the provisions of Section 13 of 

Article III of Senates Bill 1 which provide that: 

"B. Hiring Policies. (1) New employees 

will be started at 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 heretofore been employed by the San 

Jacinto State Park on a daily rate basis3 House Bill 

4 contained no provision making this method of compensation necessary. Such employees could have been 

employed by the San Jacinto State Park on an annual 

salary basis rather than a daily rate basis, and the 

only limitation placed 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 employees are not hourly 

employees, and in turn could not be considered parttime or temporary employees in view of their past employment with the San Jacinto State Park, but in actuality 

were regular, full-time employees of the San Jacinto 

State Park,~such employees would not fall within the 

exemption from the Position Classification Plan found 

in Section 2 ~of House 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 further provided, however, that 

emn se presently emDloved & 

t& St%e ih%? 2 Paid less throumh 

aPDlication of this Act than the 

salary hg received & accordance with 

the provisions -- of House Bfll No. mActs 

rthe Fifty-sixth Legislature, Third 

Called Session, 1959, or the minimum 

of the appropriate salary range 

specified in the General Appropriations 

Act effective September 1, 1961, whichever is the higher, so long as said 

employee remains in such classified 

position under the Positiot Classification Plan."~ (Emphasis added) 

We are of the opinSon that the four employees 

-_. L"._ _ in the instant case WOUCL oeentitleci to compensation, 

in their classification as "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 commencing Sep,tember 1, 

1960 and ending August 319 1961. 
. 

Honorable William J. Burke, page 4 (WW-1159) 

Your first question being answered in the 

affirmative, this then raises the question of whether 

or not one of these employees who had been furloughed 

for a period of two weeks at the end of the biennum due 

to a,,lack of available funds in the "Wages and Extra 

Help account, will be compensated pursuant to the provisions of Section 2 of House Bill 189 or whether the 

following provisions of Section B of Article III of 

Senate Bill 1 are applicable: 

"(3) Reinstated Employees. An 

employee who leaves state employment 

due to illness or some other circumstance and returns to his same position 

in state employment at a later date, 

may be reinstated to his former position 

at the salary rate he had when he left 

state employment , provided it shall not 

exceed the maximum rate of the prescribed salary group. If tiiis former 

rate exceeds the maximum of the range 

in the prescribed salary group then the 

position shall be paid at not more than 

the maximum." 

We are of the opinion that an employee who 

had been temporarily furloughed under these circumstances set forth herein has not left State employment 

wi?Wi.n the sense contemplated by Section B(3) of 

Article III of Senate Bill 1, and therefore could be 

returned to the payroll of the San Jacinto State Park 

on September 1, 1961, and compensated pursuant 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 

compensation he had received during 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 furloughed 
HonorableWilliam J. Burke, page 5 (WW-1159) 

has not left State employment within 

the sense contemplated by Section 

B(3) of Article III of Senate Bill 

1 and could be returned to the payroll of the San Jacinto State Park 

on September 1, 1961, and compensated pursuant 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 

Colman Gay III 

Harry Hewell 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Houghton Brownlee, Jr.