Honorable Robert S. Calvert OpinionNo. M- 779

Comptroller of PublicAccounts State of Texas Re: Questions relating to the Austin, Texas provisions of Article 6252-11,Vernon's Civil Statutes, and riders in the General Appropriations Act concerning State employees' position classifiDear Mr. Calvert: cation.

Your request-for an opinion on the above subjectmatter questionswhether the conclusionsreached in Attorney General's OpinionM-706 (1970)result in the violation of Section 1 of Article II of the Constitutionof Texas, dealing with the separation of powers between the three branches of government.

Your request for an opinion also questionswhether the provisions of Sections le(l), le(2) and lm of ArticleV ofHouse Bill 2, Acts 61st Legislature, 1969, 2nd Called Session, pages 623, 981, 1009-1010, the GeneralAppropriationsBill, are in conflictwith the general law.

In Attorney General's OpinionM-706 (1970) itwas held, pursuant to the provisions of Article 6252-11, Vernon's Civil Statutes (the Position ClassificationAct of 1961) and the riders to the current GeneralAppropriationsAct enacted pursuant thereto (H.B. 2 supra) that:

"State employeesunder the classification systemmay be reclassifieddownward, without change in duty assignment,without a mandatory reduction in rate of pay, not to $xceed step 7 rate of the lower salary group.
Article 6252-11, Vernon's Civil Statutes, provides in part as follows:

'Sec. 2. All regular, full-time salaried employments within the departments and agencies Of the State specified in Article III, and the Central

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Education Agency, Deaf and Blind Schools In Article IV, and all such State employments in positions other than for Judges, DistrictAttorneys, and Assistant DistrictAttorneys specified in Article I of the biennial AppropriationsAct, shall conform with the PositionClassification Plan hereinafter described and with the salaryrates and provisions of the applicableAppropriationsAct commencingwith the effectivedate of this Act, with the exceptions and defermentshereafter provided in this Section.
11

. . .
"Sec. 4. Commencingwith the effective date of this Act, all regular full-time salaried employments with the exceptionsand deferments specified hereinabove shall be.made only in conformitywith the classes ofwork described in such Position Classification Plan, and under the titles authorized by such Plan. The State Auditor shall examine or cause to be examined in periodic postaudits of expenditures of State departments and agencies, and by suchmethods as he deems appropriate and adequate,whether employmentshave been made in accordancewith the provisions of thisAct, and shall report the facts as found to the Governor, the Comptroller,and the LegislativeAudit Committee,
II

. . .
"Sec. 6.

. . . "When exceptions to or violations of the Position Classification Plan or of prescribed salary ranges are revealed by personnel audits, the ClassificationOfficer shall notify the agency head in writing and specify the points of nonconformity or violation. The executive head of such agency shallhave reasonable opportunity to resolve the exception or end the violationby reassigning the employee to another position title
or class consistentwith the work actually performed, by changing the employee's title or salary rate to conform to the prescribed Classification Plan and salary range, or.by obtaining a'

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new class description of work and salary range to correct the exception or violation." added.) (Emphasis

Pursuant to the provisions of Article 6252-11, the Legislature in the GeneralAppropriationsAct establishesa Position Classification Plan detailing salaries of employees in classifiedpositions,detailing classifiedpositions and making provisions for reclassifications, specificallyrequiring that such reclassifications shall complywith the requirements of the ClassificationAct.

You are therefore advised that the provisions of House Bill 2, Acts 61s.t Leg., 1969, 2nd C.S., relating to classification of State employeesdo not amend, repeal or modify the provisions of Article 6252-11, Vernon's Civil Statutes. On the contrary, the provisions of Article 6252-11 constitute the pre-existing law for' the classified salaries contained in the General Appropriations Act and riders governing their expenditures.

We will now discuss whether the duties prescribedby law for the Position ClassificationOfficer, the State Auditor, the LegislativeAudit Committee, and other officials chargedwith the duty of prescribing and carrying out the Position Classification Plan, violate the provisions of Section 1 of Article II of the Constitution of Texas.

Section 1 of Article II of the Constitution of Texas provides:

'Section 1. The powers of the Government of the State of Texas shallbe divided into three distinct departments, each of which shall.be confided to a separatebody of magistracy, towit: Those which are Legislative to one; those which
are Executive to another, and thosewhich are Judicial to another; and no person, or collection of persons,being of one of these departments, shall exercise any power properly attached to either of the others, excepk in the instances herein expresslypermitted.

A fundamentalprinciple of American constitutional jurisprudence is expressedby the above quoted provisions. The three departments of government are coordinatedwith and independent of each other, and none can enlarge, restrict or destroy the powers of the other. Lytle v, Halff, 75 Tex. 128, 12 S.W. 610

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(1889); Houston Tap Ry. Co. v.Randolph, 24 Tex. 317 (1859). This, however, does not vrevent the Legislature from delegating to other officials auasi~leaislativeand auasi-ludicialoowersl

S.W.2d 302 (i935);Rail?

369 s.w12ti b27 (Tex.Sup. SUP. 1957). i963);

In view of the foregoingauthorities, it is our opinion that the duties prescribedby the Legislature on the Position ClassificationOfficer, the State Auditor and the Legislative Audit Committeeby the provisions of Article 6252-11, Vernon's Civil Statutes, and the riders in the General AppropriationsAct relating to the Position ClassificationPlan constitute lawfully delegated powers and are not in violation of Section 1 of Article II of the Constitution of Texas.

SUMMARY z, X.

The duties prescribedby the Legislature on the PositionClassificationOfficer, the State Auditor and the LegislativeAudit Committee by the provisions of Article 6252-11, Vernon's Civil Statutes, and the riders in the GeneralAppropriations Act relating to the Position Classification Plan, constitute lawfullydelegated powers and are not in violation of Section 1 of Article II of the Constitution of Texas.

The riders in the current General Appropriations Act relating to the Position Classification Plan for State employees do not amend,modify or repeal Article 6252-11, Vernon's Civil Statutes, the Position ClassificationAct of 1961, the preexisting law for the PositionClassification Plan contained in the GeneralAp roprfationsAct. 1' Ve vi? / truly yzurs,Hon. Robert S. Calvert,page 5 (M-779)

Preparedby John Reeves AssistantAttorney General

APPROVED: OPINION COMMI'ITEE

Kerns Taylor, Chairman W. E. Allen, Co-Chairman Houghton Brownlee Bob Flowers Dick Chote Ralph Rash

MEADE F. GRIFFIN Staff Legal Assistant

ALFREDWALKER Executive Assistant

NOLA WHITE First Assistant

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