THE ATTCMRNEY GENERAL 

OR' TEXAS 

Cctober 8, 1986 

Eonorable Lloyd Criss 

Chairman 

Labor and Employment Relat:ions 

committee 

Texas House of Representat:ives 

P. 0. Box 2910 

Austin. Texas 78769 

Opinion NO. JM-556 

Re: Whether a state employee 

may be denied a merit increase 

because of absence for a workrelated injury 

Dear Representative Criss: 

You inquire about the denial of a merit pay increase to an 

employee of the Texas DeIlartment of Corrections. The employee was 

hired in September, 1983 and, during the year that followed, was 

absent on an approved woI.uz's compensation claim for about two and 

one half months. In Septmber 1984, she received a one-year service 

pin and began receiving huardous duty pay, but was denied a merit pay 

increase because of her absence on the worker's compensation claim. 

You ask whether the department may refuse to consider an employee for 

a merit pay raise solely bmause the employee was absent for recuperation from a work-related yinjury for which the employee's worker's 

compensation claim was appmved. 

Article 6813b, V.T.C.:;., provides, in part, that 

[8]11 salaries o:E all State officers and State 

employees. incl.uding the salaries paid any 

individual out of the General Revenue Fund, shall 

be in such sums or amounts as may be provided for 

by the Legislature in the biennial Appropriations 

Act. 

V.T.C.S. art. 6813b, §l. The Position Classification Act of 1961. 

article 6252-11, V.T.C.S., provides that the salaries of full-time 

employees, with certain exceptions, "shall also conform with the 

Position Classification Plan hereinafter described and with the salary 

rates and provisions of the applicable Appropriations Act. . . ." 

V.T.C.S. art. 6252-11, 82; see Attorney General Opinion H-105 (1973). .- 

Since the employee in question was hired in September, 1983, the 

General Appropriations Act for the 1983-85 biennium governs her compensation. Provisions re:Lating to the Position Classification Plan 

are set out in section 1 of article V of the 1983 General Appropriations Act. Acts 1983, 63th Leg., ch. 1095, art. V, 91, at 6171. 

Article V, section 1 state; in part: 

p. 2472 
Honorable Lloyd Criss - Pae,e 2 (JM-556) 

a. SALARY RATES FOR CLASSIFIED POSITIONS. For 

each fiscal year beginning September 1, 1983, 

within the limitation of funds available for 

salaries of clarlsified positions, annual salary 

rates for class,ified positions shall be in 

accordance with the above Classification Salary 

Schedules. 

. . . . 

d. MERIT SALKRY INCREASES. It is expressly 

provided that c.gency administrators may grant 

merit salarv inc'reases to classified emulovees _ I 

whose job perf,Drmance and productivity is 

consistently abtnre that normally expected or 

required. Such merit increases shall be subject 

to the following restrictions. (Emphasis added). 

The restrictions enumerated under section Id. pertain to the 

source of funds, the maximtmL monthly expenditure rate for merit salary 

increases, merit increases; for line item positions, accounting and 

reporting, and the application of merit increases throughout the 

agency's classified salary g;rouping. Finally, the following provision 

states conditions for elig~.bility for merit increases: 

(7) For an eszloyee to be eligible for a merit 

salary increase, t:he following additional criteria 

must be met: (g) the employee must have been 

employed by the %gency for at least six months. 

(b) at least 6 m&ths must have elapsed since the 

employee's last promotion or merit-increase, and 

(c) agency criteria for granting merit salary 

increases must :include specific criteria and 

documentation to s;ubstantiate the granting of more 

than a one s tt!p merit increases. (Emphasis 

added). 

Acts 1983, 68th Leg., ch. :.Cl95, art. V, §ld.(l), at 6196. 

The employee in question had been employed by the Department of 

Corrections for a calendar year before she was considered for a merit 

pay increase. Thus, even :.i! her two and one half months of absence on 

an approved compensation c1.ai.m were not counted, she still had been 

"employed by the agency fcmr at least six months." Nevertheless, you 

express general concern ;ibout whether time spent off work for a 

worker's compensation claim must be considered in determining eligibility for consideration for: a merit pay raise. 

We do not believe that the quoted provision requires the 

employee's presence each working day for six months. Attorney General 

Opinion H-105 (1973) addressed an appropriations act provision which 

awarded pay increases to state employees with five or more years 

p. 2473 
Honorable Lloyd Criss - Pa:$e 3 (JM-556) 

"total continuous service' as of a particular date. See Acts 1973, 

63rd Leg., ch. 659, art. 'J:, §la.(l), at 2191. Some state employees, 

although hired more thar. five years previously, had experienced 

interruptions in their five years' service by prolonged illness. The 

opinion pointed out the distinction between "service" and 

"employment": 

Those who remai;Il%d in its [the state's] employ 

but, for instancm>, were on vacation (certainly not 

'serving') would interrupt their service and would 

not 'continuous:.y serve' the State. (Emphasis 

added). 

Thus, the phrase "employed by the state" means that the employment 

relationship exists, and rot that the employee serves the state each 

working day, without authorized absences. If the employee remains on 

the payroll, or if tbe employment relationship is otherwise 

demonstrated, he is still employed while absent on leave. Attorney 

General Opinion H-105 further decided, based on legislative intent, 

that the appropriations ac'c provision required 

five years of se:?rice unbroken by any unauthorized 

or unreasonable absences. Holidays, days on sick 

leave, week-ends, emergency leaves and other 

approved leaves, with or without pay, do not break 

the continuity o:E service. 

Two opinions of thi!; office construing the nepotism statute, 

article 5996a. V.T.C.S.. also support our interpretation of the merit 

pay provision. In Lettszr Advisory No. 151 (1978) this office 

construed the exception in article 5996a, V.T.C.S., for persons who 

had "been continuously employed" by a governmental body for two years 

before the election or appointment of an officer or board member 

related to them within 21 prohibited degree. The Letter Advisory 

quoted from Cox v. Brown, ,jO S.W.2d 763, (MO. App. 1932), in which the 

Missouri Court of Appeals ,stated that 

[t]o be employetl in anything means not only the 

act of doing it, but also to be engaged to do it. 

or: to be under contract or orders to do it. 

Unemolovm 

1946 

989 

App. 1925, judgmi 

"hired"). The Let1 

Cox v. Brown, 50 S.W.2d at 764. Accord, Rousseau v. Teledyne Movible 

Offshore. Inc., 619 F. Supp. 1513, 1517 (W. D. La. 1985); Bigger v. 

,ent Compensation Commission, 46 A.2d 137 (Del. Super. Ct. 

), aff'd. 53 A.2d 761 zlel. 1947); In re Cormicks Estate, 160 N.W. 

(Neb. 1916). See Rose v. Clutter, 271 S.W. 890, 891 (Tex. Comm'n --- 

. adopted) ("employed" has the same meaning as 

:er Advi!lory concluded that 

a school district employee who is between terms 

but has had his contract renewed for the 

p. 2474 
Honorable Lloyd Criss - Pagl! 4 (JM-556) 

succeeding schoo!. year is employed within the 

meaning of the nepotism statute. 

In Attorney General Opinion Hi-45 (1983) we dealt with the 

Nepotism Act proviso for persons "continuously employed" prior to the 

time their relatives became officers of the governmental body. We 

reaffirmed the conclusion of Letter Advisory No. 151 that an 

individual may be continuously in the employ of the school district 

even though not rendering services at all times throughout the year. 

We conclude that the employee would have been "employed by the 

agency for at least six months" under the merit pay provision of the 

1983 General Appropriations Act if she had been hired six months prior 

to the time of merit pay coneideration and had remained on the payroll 

or otherwise continued to o~:cupy the status of an employee during that 

time. The two and one half months' absence to recuperate from a 

compensable work-related inj,ury should not be subtracted from the six 

months' employment, and she should not be refused consideration for 

merit pay because of that a',sence. 

The 1983 General Appr~,priations Act provides that merit salary 

increases may be awarded to "classified employees whose job performance and productivity ia consistently above that normally expected 

or required." A merit pay increase is thus awarded on the basis of 

performance. See Attorney General Opinion H-106 (1973). It may be 

the case that= employee has not actually worked for a sufficient 

length of time to determine whether the employee's performance exceeds 

expectations. All conditicns for the award of merit pay must be met 

in order for an employee to receive it. 

SUMMARY 

Under the merit pay provision of the 1983 

General Appropriations Act, an employee has been 

"employed by the agency for at least six months" 

if he was hired at least six months previously and 

has remained on the payroll or otherwise continued 

to occupy the status of an employee. If the 

individual is absent on an approved worker's compensation claim i!or a portion of the six months' 

employment, he has not for that reason failed to 

have been employed by the agency for six months. 

Attorney General of Texas 

JACK HIGHTOWKR 

First Assistant Attorney General 

p. 2475 
. 

Honorable Lloyd Criss - Page 5 (JM-556) 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 2476