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## THEA~O~Y GENERAL
OFTEXAS

Honorable Geo. H. Sheppard Comptrollerof PublicAccounts dustln, Texas

Dear Sir: OpinionNo. Oil139 Re: Departmental AppropriationBill of Forty-sixth Legislature - discussing %sslxned duties" - transfer of emploje& - payment of traveling expense from contingent 

### fund.

We are In r.eceipt of your letter of July 

### 19, 1939,in which you present the followingquestions to this department for an opinion:

1. "Pleaseaavlse this department whether the Comptrollerwill be authorized to issuewarrant in payment of a salary for an employeeas a day librarian,upon an appropriation for a night librarian.

2. "Inthis connection I respectfully requestyour advice as to whether a department head has the authorityunder this appropriation to transfer an employee from
one desk in the department to another.


### 3. "Itmight be of some advantage to this department in administering this Act for you to give a legal definition of the term, "assignedduties." 

### 4. "Upon examinationof thrs bill you will note there Isno Itemized appropriation to pay traveling expense under the Text Book Dlvlsion of the approprlationmade for the State Department of Education. Iwill thank you to advise whether the employeesof the Text Book Division may be reimbursed for travellng expense out of the ContingentExpense appropriation for the Text Book Division."

One of the riders on Senate Bill No. 427,Acts of theHonorable Geo. H. Sheppard, page 2 o-1139

Forty-sixth Legislature, the departmental appropriationbill, provides as follows:

"SalaryPayments. No salary for which an appropriation ismade hereln shall b'e

paid to any personunless such person actually discharges assigned autres. Every month the head of eech department shall attach to the pay-roll for his department an affidavit,under oath, stating that the persons listed In said payroll actuallyperformed the duties for which they were being paid. The Comptroller shall not issuewarrants for the payment of salaries listed on said payrollunless this affidavit is filed with him. Each department head shall number consecutively the salariesposltions In his department forwhich an appropriation is made herein (eitherout of the General Revenue Fund, fees, receipts, special funds, or out of other funds available for use by saiddepartment) and opposite the number of the position, he shall set out the title of the posItion and the name of the person employed to fill the same. This statement shall be fliedwith the Comptroller,who shall,when issuinghis warrant to any employee in payment of salary due said employee,number the warrant with the same number that 1s assigned to the posltlon filled by said employee. Every department head shall notify the Comptroller in writing of any changes in personnel in his department. This provision shall not apply to seasonal help, and shallnot prevent persons drawing their salarywarrants during authorized vacation periods."

The followingrider appeared in the departmental appropriation bill of the Forty-flfth Legislature,General Laws, 1937, page 1491, but was omftted from Senate Bill No. 427,Acts of Forty-sixth Legislature:

"Transfer of Employees: It shallbe the duty of the head of any department to transfer an employee of his office to any desk or place within the departmentwhen. -

-.

Honorable George

necessary to perform the duties of the department,and for the proper dispatch of business.'

B. Sheppard,page 3 O-1139

The omission of the authorization for transfer oftemployees inthepresent approprlatlonbill, and addltlonal~~and. niore detailed restrictionsupon the expenditureof the moneys appropriated therein,definitely indicate a change in policy
on the part of the'leglslature. In general the'preseiit bill contains Itemizedappropriations for each department ana employee in the department,and does not authorize the transfer of persons employed for one purposeunder the appropriation bill to performwholly different and unrelated duties. On the contrary',

the bill requires the departmenii head to list and -' number each lnalvlaual employee, except seasonal help, and make affidavit "that the person listed in said paz$l actuallyperformed~theduties for which they were beinR D . When the Legislature has set aside $900.00 to pay a person to perform the duties of a night librarian, it is obvious that the aepartment bead could not make an affldavlt that a person employ-ed

to performwholly the duties of a day librarian had actually performed theduties for which he was being pata.

The same considerationsapply to the transfer of an employee from one desk to another. If, for example, the bill so authorizes, and a person is employedas a Field Inspector, anal draws pay under a specificappropriation for a Field Inspector, he could not be transferred to performwholly the duties of a Senior AccountantwhFle being paid as a Field Inspector, and thus by indirection,in fact, have two Senior Accountantswhere only one Is provided for in the appropriationbill. Clearly the affidavitwould be false If it stated the employee actually nerformed the duties forwhich he was being paid. This, of course, would not prevent the transfer of an employeewithin the department where a bona fide transfer is made, and the employee is to be paid under the item of appropriation corresponding to his
new employment.

The term "assignedduties" refers to those duties ordlnarily and properlydischargedby persons employed in the capacities authorizedunder the title assigned to the employment in the Itemizedappropriation. For example, It 1swell recognized that a certain class of work is ordinarilyperformedby stenographerswhile the naturalduties incident to a person beating the title of "Porter"under the appropriationwould be entirelydifferent. The detailedduties of each individualmay properly be designated and assigned, however, by the department head or someoneunder hfs direction, but, in general, they should be of the nature contemplatedby the item of appropriation under which payment is to be made. The above quoted rider onHonorable Geo. H. Sheppard, page 4 O-1139

salary paymentsdoes not prohibit a person employed Fn one capacity from perfoi+mLng any other serviceor duty, but it requires that he actually perform the duties for which he is paid. If he performs the duties for which he is being paid, and Is able, In addition thereto, to assistwith othernecessary activities of the department,we find nothlng in the bill which would prevent the department head from so dlrectlng. It is common knowledge that the volume of work on variousdesks in the different departmentsfluctuates from time to time, and
we do not think itwas the intention of the Legislature to prohibit the head of a department from dtrectlngan employee to perform additionalduties or assist with otherwork where the circumstancesrequire. This is a situation to which the rule of reason must be applied.

WFth reference to payment of traveling expensefrom the appropriation for the Text Book Division of theDepartment of Education,we note that no specific appropriation is made for travellng expense. You request an opinion as to whether such expensemay be paid from the following item of appropriation:

MAINTENANCE & WISCELLdNEOUS "ForYears Ending August 

### 31 1940 duyggsq;

31

1. Office ax&depository supplies, postage, express, drayage, telephone, telegraph, printing, statlonery, rent, contingent expense, including freight
on used text books e o
. 

### .$25,000.00$25,000.00'~ Following the appropriation for this division of the Department of Education, Fs the followFngprovision:

"Thisappropriation shall be as above provided, and no other salary or expenditure shall be paid for any prpose other than those itemized herein.

The followingparagraph appears as a rider to the departmental appropriationbill:

"TravelingExpenses. (a) It is provided that no exoenditure shall be made for travellng expenses by any department of this State in excess of the amount of monev itemizedherein. -

Honorable Geo. H. Sheppard, 

### page5 o-1139

for said uurnose. This provision shall be applicablewhether the ltem for travellng expenses 1s to be paid out of the appropriatfon from the General Fund, from fees, receipts or special funds collectedby virtue of certain laws of this State, or from other funds (exclusive of Federal fUna8) available for use by a department." Traveling expense is an item of expensewhich was reasonablywithin the contemplationof the Legislature as evlaenced by the fact that Senate Bill No. 427 repeatedlymakes specificprovision therefor. This Is equally true of the variousdivisions of theDepartment of Educationwhere with few exceptions specificprovision ismade for travel expense for each division. The fact that such provisionwas not made for the text book division is significant.

In view of the expressprovision of the above quotea riders,we do not find it necessary to determinewhat ordinarily may or may not be paid out of an approprlatlon for contingent expense.

It 1s our oplnlon that the Comptroller Is not authorized to Issuewarrants In payment of a salary for any person employed as a aay librarian from a specific appropriation for a night librarian. The answer to your first question is, therefore, in the negative.

As we understand your second and third questions, they do not require a categoricalanswer and we trust that our above discussion of these questionswill serve as a satisfactoryanswer. If you desire an aMltlona1 answer,we shallbe 

### glad to advise you furtherupon request.

It is our oplnFon that your fourth question shouldbe answered in the negative.

Yours very truly

ATTORNEY GENERAL OF TEXAS

CCC:FG:wc

APPROVED JUL 

### 31, 1939 a/n.F.Moore FIRST ASSISTART ATTORNRYGRNRRdL By s/Cecil C. Cammack Cecil C. Cammack Assistant

Approved Opinion CommitteeBy RWP Chairman