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 em-
                             ploje& - payment of traveling ex-
                             pense from contingent fund.
            We are In r.eceiptof 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 depart-
        ment head has the authority under this ap-
        propriation 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 ap-
        propriation to pay traveling expense
        under the Text Book Dlvlsion of the ap-
        proprlation 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'epaid 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 du-
    ties 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 posl-
    tions In his department for which an ap-
    propriation is made herein (either out
    of the General Revenue Fund, fees, re-
    ceipts, special funds, or out of other
    funds available for use by said depart-
    ment) and opposite the number of the po-
    sition, he shall set out the title of
    the posItion and the name of the person
    employed to fill the same. This state-
    ment shall be flied with the Comptroll-
    er, 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 appro-
priation 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
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             -.

        Honorable George B. Sheppard, page 3          O-1139


            necessary to perform the duties of the
            department, and for the proper dispatch
            of business.'
                The omission of the authorization for transfer oftem-
        ployees inthe present approprlatlon bill, and addltlonal~~and.
        nioredetailed restrictions upon the expenditure of the moneys
        appropriated therein, definitely indicate a change in policy
        on the part of the'leglslature. In general the'preseiitbill
        contains Itemized appropriations for each department ana em-
        ployee 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 departmeniihead to list and -'
        number each lnalvlaual employee, except seasonal help, and make
        affidavit "that the person listed in said paz$l    actually per-
        formed~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 ae-
        partment bead could not make an affldavlt that a person em-
        ploy-edto 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 em-
        ployee 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 ner-
        formed the duties for which he was being paid. This, of course,
        would not prevent the transfer of an employee within the depart-
        ment 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 ordl-
        narily and properly discharged by persons employed in the ca-
        pacities authorized under the title assigned to the employment
        in the Itemized appropriation. For example, It 1s well recog-
        nized 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+mLngany other service or duty, but it re-
quires 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 ac-
tivities 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 pro-
hibit 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:
                                   "For Years Ending
                                 August 31   duyggsq;
                                                    31
                                     1940
MAINTENANCE & WISCELLdNEOUS
        1.   Office ax&depository sup-
             plies, postage, express,
             drayage, telephone, tele-
             graph, printing, statlon-
             ery, rent, contingent ex-
             pense, 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 depart-
mental appropriation bill:
        "Traveling Expenses. (a) It is provided
    that no exoenditure shall be made for travel-
    lng 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 ex-
            penses 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 (ex-
            clusive of Federal fUna8) available for use
            by a department."
                Traveling expense is an item of expense which was rea-
        sonably within the contemplation of the Legislature as evlaenc-
        ed by the fact that Senate Bill No. 427 repeatedly makes
        specific provision therefor. This Is equally true of the var-
        ious 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                            By s/Cecil C. Cammack
                                                  Cecil C. Cammack
        APPROVED JUL 31, 1939                     Assistant
        a/n.F. Moore
        FIRST ASSISTART
        ATTORNRYGRNRRdL
        Approved Opinion Committee By RWP Chairman