THEATTORNEY                     GENE-L
                                 OFTEXAS




Honorable  J. W. Edgar,                  Opinion   No. WW -2 11
Commissioner    of Education,
Texas Education Agency,                  Re: Number     of employees     the Texas
Austin, Texas                                 Education Agency may employ
                                              with a salary rating in Salary
                                              Group XIV. Article     III; House
                                              Bill 133. Acts 55th Legislature.
Dear      Doctor    Edgar:                    and other question.

                        You have requested the opinion   of this Department    on
two questions.         The first is as follows:

                      The number of employees     the Texas Education
            Agency may employ with a salary rating in Salary Group
            XIV. Article  III. House Bill 133. 55th Legislature.

                      House Bill 133. Acts 55th Leg,islature,  Regular   Session.
Article     III. chapter 385, page 973 (Biennial Appropriation    Bill) states in
part:

                       “The proper officer or officers    of the Texas
            Central Education Agency are hereby authorized to make
            application for and accept any other gifts, grants or al-
            lotments from the United States Government         or other
            sources to be used on cooperative      and .other projects
            and programs    in Texas.   Any ruch Federal aad other
            funds as may be deposited in the State Treasury         are
            hereby appropriated    to the specific purposes author-
            ized by the Federal   Government     and other contracting
            Gganieations.    and the State Board .of Education is au-
            thorized to expend these funds in accordance       with the
            ter~ms ot the contract with the CPntractlpg     agent.”

                    House Bill 133. Acts 55th Legislature,   Regular Session,
Article  III. chapter 385. page 987. sets a limitation of nineteen positions
in Salary Group XIV, NTE $8.000.00.        We are advised that such nineteen
regular positions are filled by regular employers      to be paid f,rom funds
appropriated    to this Agency for performing   the fur&ions   provided in the
Agency budget.

                     House Bill 133. Acts 55th Legislature.       Regular   Session,
Article     VI, chapter 385. page 1148. reads in part:
                                                                                 - ..   j




Honorable    J. W. Edgar,   Page   2 (WW-211)




                    “Sec. 19. Federal    Funds appropriated     for use.
         Any funds received     by the agencies   of the State named in
         this Act from the United States Government         are hereby
         appropriated    to such agencies for the purposes for which
        ‘the federal grant. allocation,    aid, or payment was made,
         subject to the provisions    of this Act.”

                 Pursuant to a contract between Texas Education Agency
and the United States Office of Education for a federal grant to conduct a
research  project in the area of Modular Design of School Buildings.   the
Texas Education Agency desires     to engage personnel  thereunder without
regard to the provisions  of Salary Group XIV quoted above.

                  We are of the opinion that the limitation of nineteen posi-
tions, as set out in Salary Group XIV, applies only to the performance     of
work which is done to carry on the normal and usual functions by the em-
ployees in this group.    As we view it, this provision does not contemplate
any work to be. done by virtue of specific federal grants outside the usual
scope of duty of employees within Salary Group XIV.

                    -Section 19 of the General Provisions-of     House Bill 133.
as quoted above. is a broad and general provision          and applies to all State
 agencies.    We believe that the appropriation      therein of federal funds to
any agency, for the purposes for which the federal grant was made, “sub-
ject to the provisions     of this Act,” does not limit the number of peoplr
who may be emDlOyed         in pursuance   of a contract made to carry out the
provisions    of &e federal-grant,     even though such a limitation is placed
on the Salary Group in which these proposed employees            would normally
fall.  It will be noted~ that the provision which authorizes      the Agency to
make application for, and to accept federal funds for specific projects
and programs      is just as much a part of House Bill 133 as is the provi-
sion which limits Salary Group XIV to nineteen positions.            It can be con-
cluded, therefore,     that the general provision appropriating      the federal
funds to the Agency involved is. in fact, subject to the first quoted provi-
sion above, which authorizes        the application and the acceptance     of such
funds, and which provision is implemented          by the contract between the
Agency and the United States Office of Education for the research             project
specified.

                    We conclude, therefore,    that the Texas Education Agency
is not limited in its employment     of persons with a salary rating in Salary
Group XIV, House Bill 133. Article      III. chapter 385. page 967, when such
additional personnel     is employed to perform     duties of a special nature in
pursuance    of a federal grant for a particular    project.

                   You have asked     the further   question:.

                  Whether or not “professional        fees” as used in the
        following provision. includes persons        employed for educa-
        tional services ?
._   -




     Honorable   J. W. Edgar,    Page   ! (WW-211)




                       House Bill 133, Acts 55th Legislature,  Regular Session,
     Article III. chapter 385, page 969,relating to’the General~Revenue   Fund
     of the Central Education Agency provides:

                       “Geueral administra~tion and supervision,,   in-
             cluding salaries,  seasonal help, professional   fees, . . :
             to be expended in accordance    with the operating budget
             of the Texas Central Education Agency as adopted by
             the State Board of Education.    . . . .

                        The word ‘professional*      originally   contemplated    only
     theology, law. and medicine, but as applications         of science and learning
     are extended to other departments      of affairs,   other vocations also re-
     ceive the name, which implies professed        attainments in special knowl-
     edge as distinguished    from mere skills.     Aulen v. Triumph Explosive,
     D.C. Maryland,    58 F.Supp.. 4, 8. Our Texas courts have defined a ‘pro-
     fession”   as a “vocation, calling, occupation or employment         involving la-
     bor. skill, education,   special knowledge and compensation         or profit, but
     the labor and skill involved is predominantly        mental or intellectual,    rath-
     er than physical or manual. * h4aryland Casualty Company v. Crazy Wa-
     ter Company, 160 S.W.Zd, 102 (Tex.Civ.App.          1942).

                       We are of the opinion that under this recent definition
     of the word “profession”    by the Texas Court, such term properly      in-
     cludes teachers,   educators,   and those persons employed for educational
     services,  who have attained a high degree of special knowledge and learn-
     ing, where such knowledge is used by its practical      application to the af-
     fairs of others, either advising or guiding and in serving their interest
     or welfare  in the practice   of an act founded upon it. where such work is
     predominantly    mental or intellectual.




                                        SUMMARY


                        The Texas Education       Agency     is not limited
              by the provisions     of Salary Group XIV, House Bill
              133. Acts 55th Legislature.       Regular    Session,    Article
              III, chapter 385, page 967, when such additional             per-
              sonnel is employed       to perform   work authorized        by a
              kpzel    federal   grant fez a particular       project.    Fur-
                     “professtonal    fees    may properly      be paid to
              pers’ons employed     for educational     services    if such
Honorable       J. W. Edgar.    Page   4 (WW-211)



          persons   fulfill    the requirements    of a member         of
          a “profession”,       as defined herein.

                                           Very     truly yours,

                                           WILL WILSON
                                           Attorney General        of Texas



                                           By &/6!          +,                v;
                                                  B. H. Timmins.     Jr.
                                                  Assistant

BIiT:pf   :cm

APPROVED:

OPINION      COMMITTEE

H.’ Grady    Chandler,    Chairman

W. V. Geppert

Wallace     Finfrock

REVIEWED         FOR     THE ATTORNEY       GENERAL

By:   Ged. P. Blackburn