1 

THEA~O~Y GENERAL 

OFTEXAS 

Honorable Geo. H. Sheppard 

Comptroller of Public Accounts 

dustln, Texas 

Dear Sir: Opinion No. Oil139 

Re: Departmental Appropriation Bill 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 following questions to this department 

for an opinion: 

1. "Please aavlse this department 

whether the Comptroller will be authorized 

to issue warrant in payment of a salary 

for an employee as a day librarian, upon 

an appropriation for a night librarian. 

2. "In this connection I respectfully 

request your advice as to whether a department head has the authority under this appropriation to transfer an employee from 

one desk in the department to another. 

3. "It might be of some advantage to 

this department in administering this Act 

for you to give a legal definition of the 

term, "assigned duties." 

4. "Upon examination of thrs bill 

you will note there Is no Itemized appropriation to pay traveling expense 

under the Text Book Dlvlsion of the approprlation made for the State Department 

of Education. I will thank you to advise 

whether the employees of the Text Book 

Division may be reimbursed for travellng 

expense out of the Contingent Expense 

appropriation for the Text Book Division." 

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

Forty-sixth Legislature, the departmental appropriation bill, 

provides as follows: 

"Salary Payments. No salary for 

which an appropriation is made hereln 

shall b'e paid to any person unless 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 actually performed the duties for which they were being paid. The 

Comptroller shall not issue warrants for 

the payment of salaries listed on said 

payroll unless this affidavit is filed 

with him. Each department head shall 

number consecutively the salaries posltions In his department for which an appropriation is made herein (either out 

of the General Revenue Fund, fees, receipts, special funds, or out of other 

funds available for use by said department) 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 flied with the Comptroller, who shall, when issuing his 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 shall not prevent persons 

drawing their salary warrants during 

authorized vacation periods." 

The following rider 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 shall be 

the duty of the head of any department to 

transfer an employee of his office to any 

desk or place within the department when 
. - 

-. 

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 oft employees inthe present approprlatlon bill, and addltlonal~~and. 

niore detailed restrictions upon the expenditure of the moneys 

appropriated therein, definitely indicate a change in policy 

on the part of the'leglslature. In general the'preseiit bill 

contains Itemized appropriations for each department ana employee in the department, and does not authorize the transfer 

of persons employed for one purpose under the appropriation 

bill to perform wholly 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 actually performed~the duties 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 perform wholly the duties of a day librarian had 

actually performed the duties for which he was being pata. 

The same considerations apply to the transfer of an employee from one desk to another. If, for example, the bill so 

authorizes, and a person is employed as a Field Inspector, anal 

draws pay under a specific appropriation for a Field Inspector, 

he could not be transferred to perform wholly the duties of a 

Senior Accountant whFle being paid as a Field Inspector, and 

thus by indirection, in fact, have two Senior Accountants where 

only one Is provided for in the appropriation bill. Clearly the 

affidavit would be false If it stated the employee actually nerformed the duties for which he was being paid. This, of course, 

would not prevent the transfer of an employee within 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 "assigned duties" refers to those duties ordlnarily and properly discharged by persons employed in the capacities authorized under the title assigned to the employment 

in the Itemized appropriation. For example, It 1s well recognized that a certain class of work is ordinarily performed by 

stenographers while the natural duties incident to a person 

beating the title of "Porter" under the appropriation would be 

entirely different. The detailed duties of each individual may 

properly be designated and assigned, however, by the department 

head or someone under hfs direction, but, in general, they 

should be of the nature contemplated by the item of appropriation 

under which payment is to be made. The above quoted rider on 
Honorable Geo. H. Sheppard, page 4 O-1139 

salary payments does not prohibit a person employed Fn one 

capacity from perfoi+mLng any other service or 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 assist with other necessary 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 various desks in 

the different departments fluctuates from time to time, and 

we do not think it was the intention of the Legislature to prohibit the head of a department from dtrectlng an employee to 

perform additional duties or assist with other work where the 

circumstances require. This is a situation to which the rule 

of reason must be applied. 

WFth reference to payment of traveling expense from the 

appropriation for the Text Book Division of the Department of 

Education, we note that no specific appropriation is made for 

travellng expense. You request an opinion as to whether such 

expense may be paid from the following item of appropriation: 

MAINTENANCE & WISCELLdNEOUS 

"For Years 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 followFng provision: 

"This appropriation shall be as above 

provided, and no other salary or expenditure 

shall be paid for any prpose other than 

those itemized herein. 

The following paragraph appears as a rider to the departmental appropriation bill: 

"Traveling Expenses. (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 itemized herein 
. - 

Honorable Geo. H. Sheppard, page 5 o-1139 

for said uurnose. This provision shall be 

applicable whether the ltem for travellng expenses 1s to be paid out of the appropriatfon 

from the General Fund, from fees, receipts or 

special funds collected by 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 expense which was reasonably within the contemplation of the Legislature as evlaenced by the fact that Senate Bill No. 427 repeatedly makes 

specific provision therefor. This Is equally true of the various divisions of the Department of Education where with few 

exceptions specific provision is made for travel expense for 

each division. The fact that such provision was not made for 

the text book division is significant. 

In view of the express provision of the above quotea 

riders, we do not find it necessary to determine what 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 Issue warrants 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 categorical answer and we trust that our above 

discussion of these questions will serve as a satisfactory answer. 

If you desire an aMltlona1 answer, we shall be glad to advise 

you further upon request. 

It is our oplnFon that your fourth question should be 

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 Committee By RWP Chairman