November 25. 1974

. The Honorable Neil Caldwell Chairman Appropriations Committee House of Representatives P. 0. Box 2910 Austin, Texas 78767 Opinion No. H- 456 Re: Ouestions concerning salaries of non-faculty employee* of colleges and universities Dear Representative Caldwell: Your opinion request raises the following questions: Are non-faculty employees at colleges and universities paid from auxiliary enterprise funds entitled to the benefits ofthe salary increases provided for inArticle IV, Section 46, House Bill No. 139, Chapter 659, 63rd Texas Legislature, Regular Session, 1973 [The Appropriations Act]? Inthe event we should determine that such employees are not entitled ‘. +. to the benefits provided by Article IV, section 46. you further request ‘. that we decide whether they are properly included as members of.the; Teacher Retirement System. Section 51.002 of the Texas Education Code provides for the retention of “control” ofcertain sums of money collected by the higher education **i.nstitutions** enumerated in section 51.001(a).. Among the categories of funds so specified are:

. . . (2) charges for use of rooms and dormitories; (3) receipts from meals, cafes and cafeterias;

. . . p. 2098The Honorable Neil Caldwell, page 2 (H-456)

No definition ofauxiliary enterprise is contained in the Texas Education Code. We assume for the purposes ofthis opinion that enterprises generating the type of funds mentioned in Section 51.002(a)(2) and (3) are the auxiliary enterprises about which you inquire. ‘. Control over auxiliary enterprise funds, however, is subject to the operation of section 51.006. Attorney General Opinion V-54 (1947). That section provides:

No part of any ofthe funds listed in Section 51.002 ofthis code shall ever be used to increase any salary beyond the sum fixed by the legislature in the general appropriations act, and the provisions ofthis subchapter are subordinate to the general appropriations act for the support of each institution. (Emphasis added). Itis clear from a~review ofthe authorities inpoint that the effect,of
..’ section 51.006 is tomake the use ofthe funds over which institutional i
“control” is retained subject to the will ofthe Legislature as expressed ,.::
‘: ~ in the biennial Appropriation Act. Attorney General Opinions V-715 (1948); v- 54 (1947). ,. Auxiliary enterprise funds, even though generated internally by the
. operation ofthe enterprise, are subject to appropriation by the Legislature’: :’ ‘~ Attorney General Opinion V-715 (1948). See also Article IV section 17of theAppropriation Act of 1973 (reappropriating balances within local institutional funds at the cIose offiscal year 1973 and the income to those funds for the fiscal years 1974 and 1975 for continued use by the respective state institutiuns); Article IV, section 20 (allowing transfers “between items ofappropriations 00a regardless ofwhether said appropriation items are General Reverue or local funds in character
. . . ‘I); andArticle IV,. section 27b (providing for the deposit of local funds other than “Local Income fiqm. Educational Activities”[including auxiliary enterprise funds], “for which appropriations are made in [Article IV, Appropriations Act of 1973]).” For. this reason use regulations imposed by the Appropriations Act upon these funds are a valid exercise of Legislature authority within that Act. Thus, it is clear that the Legislature can control the use to which local (e. g., -, auxiliary enterprise) funds are put. The answer to your question, then, turns onwhether the Legislature da by the Appropriations Act exercise that control with respect to auxiliary enterprise funds.
p. 2099. The Honorable Neil, Caldwell, page 3 (H-456)

.

. Article IV, section 46 ofthe Appropriations Act states:

NON FACULTY SALARIES. a. For the fiscal year beginring September 1, 1973, within the limitation of funds available for salaries andwages of nonfaculty employees, the following increases over the August 1973 rates shall be provided for non-faculty employees effective September 1, 1973:

b. For the fiscal year beginning September 1, 1974, all non-faculty employees will receive an increase of 3.4% over their August 1974 rate. The section clearly provides that “all non-faculty employees” be given the raises indicated. The question presented by your request, then, ultimately depends upon the meaning ascribed tothe phrase “all nonfaculty employees” in the context ofthe above section. Neither sections 51.001. et seq., ofthe Texas Education Code or the Appropriation Act of 1973 defines the term “non-faculty employees. ‘I However, an examination ofthe definition given that term by implication in a closely related part ofthe Code, is illumi.nating.

‘Faculty member’ means a person who is employed by an institution of higher education ona full time basis as amember ofthe faculty or staff and whose duties incl.ude teaching, research. administration, including professional librarians, or the performance ofprofessional services, but does not mean aperson employed in aposition which is in the institution’s classified personnel system or aperson employed in a similar type ofposition if the institution does not have a classified personnel system. Texas Education Code, 551.352(4). (Emphasis added) Clearly, auxiliary enterprise personnel are “employed by aninstitution ofhigher education. I’ Itis also evident that they.do not come within the definition of ‘,‘faculty member” as provided in the above section. We con- . elude from a reading of the specific provisions of section 51.352 in light ofthe clear language of the salary increase provision ofArticle IV, section 46 p. 2100‘
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.

The Honorable Neil Caldwell, page 4 (H-4’56) .’ .. .

ofthe Appropriations Act of 1973, that the Act did not specifically or by implication attempt to distinguish between different groups ofnon-faculty employees who were granted a raise within the limitations offunds available. Our affirmative conclusion in response to your first question renders discussion ofyour second questi,on unnecessary.

,.

. SUMMARY Non-faculty employees at colleges and universities paid from auxiliary enterprise funds are entitled to,the ” benefits ofthe salary increases provided for inArticle IV, section 46 ofthe Appropriations Act of 1973 within
. “’ the limitation of funds available.

APPROVED:

.., Very truly yours, A i 

# c/ Attorney General of Texas ., 1

DAVID 

### M. KENDALL, Chairman Opinion Committee

p. 2101 I
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