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THEATTOIZNEYGENEEZAL 

OFT'EXAS 

November 6, 1963 

Honorable John H. Winters Opinion No. c-172 

Conunlssloner 

State Department of Public Re: Whether the State DepartWelfare ment of Public Welfare is 

Austin, Texas authorized to continue 

their agreements with the 

Federal Government as reDear Mr. Winters: gards the Merit System. 

Your opinion request states that the State Department 

of Public Welfare, hereinafter referred to as the Department, 

receives substantial grants-in-aid necessary to its operation 

from the Federal Government. As a condition of qualifying for 

such grants, ,agreements are made with the Federal Government which 

include the requirement that the Merit System of Personnel Administration be followed by the Department. You state that: 

"Over a period of years the State Department of Public Welfare has officially operated 

under a Merit System of Personnel Administration 

as required by Titles I, IV, Section 3 of V, X, 

and XIV of the Federal Social Security Act 

as authorized by Section 4, Subsection (1Oj %!' 

the Public Welfare Act of 1941, as amended, being 

House Bill No. 611, Acts of the 47th Legislature, 

Regular Session, 1941, and being codified as Article 695~, Vernon's civil Statutes." 

Your request states that under the above Merit System 

salary increases are based on written satisfactory evaluation of 

work performed and are not automatic , and therefore in principle 

are similar to the Merit Salary Increases provisions in Article V, 

Section 1, Subsection L of House Bill 86, Acts of the 58th Legislature, 1963. However, the provisions of these two plans are not 

identical, particularly as to the length of time requlred between 

merit increases, the initial date that such merit can be recognized, 

and the number of employees eligible for such recognition. 

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Hon. John Ii. Winters, Page 2 (C- 172 ) 

Article V, Section 1 of House Bill 86 states that, 

except where otherwl .se speclfically.provided, expenditures for 

employees* salaries in classified positions shall be governed 

bye and be in conformity with the provisions of such Section. 

However, within the provisions of House Bill 86 relating to 

the Department, the following appears at page 111-186: 

“Salary adjustments and merit system increases shall be governed by agreements with 

the Federal Government provided, however, that 

such agreements do not exceed the provisions 

in this Act governing the operation’of the 

State Employees Classlflcation Plan.” 

You therefore ask our opinion concerning the following 

question: 

“DO the Statutes and the Appropriation Act 

permit a Salary Classification Plan under the 

Merit System Rule with a beginning step for each 

position not above Step 1 of the State Salary 

Classification Schedule and for Intermedlate 

steps to which employees may be advanced at 

stated intervals as may be agreed by the State 

Department of Public Welfare and the Federal 

Agencyso long as the maximum salary paid does 

not exceed the maximum for the group to which 

the employee Is assigned as provided in the 

State Classification Salary Schedule under the 

State Salary Classification Plan?” 

The use of the Merit System by the Department was 

first authorized in 1941 when the Le islature enacted Article 

695c which provides at Section 4 (10 7 that the Department shall: 

“(10) Have authority to establish by rule 

and regulation a Merit System for persons employed by the State Department of Public Welfare 

in the administration of this Act; and shall provide by rule and regulation for the proper operation 

and maintenance of such Merit System on the basis 

of efficiency and fitness; and may provide for the 

continuance in effect of any and all actions heretofore taken in pursuance of the purposes of this 

subsection. The State Department is empowered and 

authorized to adopt regulations that may be necessary 

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Hon. John H. Winters, page 3 (C472 ) 

to conform to the Federal Social Security Act 

approved March 14, 1935, as emended, and shall 

have the power and authority to provide for the 

maintenance of a Merit System in conjunction 

with any Merit System applicable to any other 

State agency or agencies operating under the 

said Social Security Act as amended. 

"The Social Security Board shall exercise 

no authority with respect to the selection, tenure of ,office, and compensation of any individual 

employed in accordance with such methods." 

After some twenty years of operation by the Department 

under the Merit System Rule, the Legislature 

such in the !Position Classification Act 

a ain acknowledged 

of'19 % 1, ",codified as 

Article 6252-11, Vernon's Civil Statutes, which recites in Section 5 that: 

!I 

. . . 

"The preceding two paragraphs of this 

Section, however, shall not be construed as 

abrogating statutory authorizations for certain State agencies to operate under employee 

merit systems as a condition for qualifying 

for Federal grants-in-aid; and all such merit 

systems as have been or may hereafter be agreed 

to by the respective State agencies and agencies 

of the U.S. Government shall be in full force 

and effect, subject only to the applicable laws 

of this State." 

In addition, it is also observed that while the Department is covered by the classification of employees, Its employees 

are not fully within the salary schedule accompanying such classification. In nearly every instance maximum salaries are no higher than an amount equal to Step 3 of the Salary Schedule, and. therefore starting salaries usually fall below that prescribed by Step 

1. The only counterbalance to these deficiencies is the Merit 

System which allows for the continued and regular recognition of 

meritorious service. 

A consideration of all of the foregoing factors leads 

us to the conclusion that the Legislature was well aware that the 

Department's operation is substantially affected by agreements with 

the Federal Government, and that it recognized the condition of a 

Merit System in order to qualify for such grants-in-aid. 

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Hon. John H. Winters, page 4 (C-172 ) 

Further, in viewing the Classification System broadly 

as a plan to place all State employees of a same class on an equal 

basis as far as possible , we are unable to perceive how the continuation of the agreements with the Federal Government will violate 

this principle with the fact in mind that the Department is already 

at a comparative disadvantage salary-wise. 

Therefore, in consideration of all of these factors, 

it is our opinion that the Department's agreement as set forth 

in the question presented is authorized and that a continuation 

of the Merit System is authorized. 

SUMMARY 

Agreements between the State Department of 

Public Welfare and the Federal Government, as 

regards the Merit System , are authorized so long 

as beginning salaries do not exceed Step 1 and 

maximum salaries do not exceed Step 7 of the 

Salary Classification Schedule. 

Very truly yours, 

WAGGONER CARR 

Attorney General 

pp:mkh Assistant 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Pat Bailey 

Paul Robertson 

Nicholas Irsfeld 

George Gray 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

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