Can Texas make a corrections officer work a full year before getting hazardous duty pay?

Texas AG Opinion JM-548: Hazardous Duty Pay

Plain-English summary

A state senator asked the Attorney General whether the Texas Department of Corrections could require a new employee to work a full year before qualifying for hazardous duty pay, the extra monthly pay that goes to personnel who work in or around a prison. Under TDC's system a new correctional officer spent one month in training as a Correctional Officer I, then six months on probation as a Correctional Officer II, then moved up to Correctional Officer III, and no hazardous duty pay was granted during the first five months in those positions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0548.pdf

The AG concluded the one-year requirement was valid. The pay statute (article 6252-20b, V.T.C.S.) and the General Appropriations Acts tied hazardous duty pay to service measured "for each year of state service," and the AG read that phrase as unambiguous: it fixes a minimum of one year of service that an employee must complete before the benefit can be awarded. The AG added that the department is a state administrative agency and may adopt rules that are consistent with its enabling act, and that the AG's office had consistently treated a length-of-service condition in a benefit statute as requiring the employee to finish the full period specified. So TDC could require its employees to complete one year of employment before becoming eligible for hazardous duty pay. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0548.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Article 6252-20b, V.T.C.S., has since been repealed and recodified, and the Department of Corrections has been reorganized into the Texas Department of Criminal Justice. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, pay rate, or citation mentioned here.

Common questions

Could the Department of Corrections make an officer wait a year for hazardous duty pay?

Yes. The AG concluded that article 6252-20b, V.T.C.S., authorized TDC to require its employees to complete one year of employment before they became eligible to receive hazardous duty pay, and that the policy was valid. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0548.pdf

Why did the one-year requirement hold up?

Because of the statute's wording. The pay was set "for each year of state service," and the AG read that phrase as unambiguous, fixing a minimum of one year that the employee must serve before the benefit may be awarded. The AG said it was not at liberty to enlarge or shorten that period. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0548.pdf

Did being classified as a "law enforcement" employee entitle an officer to the pay right away?

No. The AG explained that while article 6252-20b authorized hazardous duty pay for "all law enforcement personnel" entitled to receive it, those officials still had to meet the required statutory time of service with the department first. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0548.pdf

Had the AG's office read other service-based benefits the same way?

Yes. The AG noted its office had consistently held that when length of service establishes an employee benefit in a statute or appropriations act, the specified amount of service means the completion of that period of time, citing its earlier opinions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0548.pdf

Background and statutory framework

Hazardous duty pay for state law enforcement and correctional personnel was governed by article 6252-20b, V.T.C.S., which listed the covered categories, including law enforcement personnel commissioned by the Texas Department of Corrections and Board of Pardons and Paroles employees with routine direct contact with inmates. The General Appropriations Act for the biennium beginning September 1, 1983 (Acts 1983, 68th Leg., ch. 1095) authorized TDC to pay hazardous duty pay at seven dollars per month "for each year of State service" up to the 30th year for a list of correctional classifications from Correctional Officer I through Warden, and allowed a capped number of other employees whose work required daily inmate contact to receive it. The Appropriations Act for the biennium beginning September 1, 1985 (Acts 1985, 69th Leg., ch. 980) similarly authorized the pay for persons classified from Correctional Officer I through Warden. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0548.pdf

The AG's analysis rested on two points. First, TDC is a state administrative agency that may promulgate rules and regulations not inconsistent with its enabling act (article 6166a et seq.) and other statutes, a point the AG supported with the definition of a state agency in article 6252-13a, section 3(1), and with Stanfield v. Texas Department of Public Safety. Second, the phrase "for each year of state service" is unambiguous, so under the plain-meaning approach reflected in Wall v. Wall the AG could not enlarge or modify the one-year period the legislature set; the employee must complete one year of service before the benefit is awarded. The AG reinforced this with its own line of opinions treating a length-of-service benefit condition as requiring completion of the full period specified. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0548.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0548.pdf

Statutes and appropriations:

• V.T.C.S. art. 6252-20b (hazardous duty pay)
• V.T.C.S. art. 6166a et seq. (Department of Corrections enabling act)
• V.T.C.S. art. 6252-13a, § 3(1) (definition of state agency)
• General Appropriations Act, Acts 1983, 68th Leg., ch. 1095, at 5794
• General Appropriations Act, Acts 1985, 69th Leg., ch. 980, at 7353

Cases:

• Stanfield v. Texas Department of Public Safety, 422 S.W.2d 14 (Tex. Civ. App. - Dallas 1967)
• Wall v. Wall, 172 S.W.2d 181 (Tex. Civ. App. - Amarillo 1943)

Attorney General opinions cited:

• Attorney General Opinions MW-282 (1980); H-341 (1974); M-984 (1971)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0548
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0548.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

September 19, 1986

Honorable Oscar H. Mauzy
Chairman
Committee on Jurisprudence
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. JM-548

Re: Whether the Texas Department of Corrections may require completion of one year of service before awarding hazardous duty pay

Dear Senator Mauzy:

You have asked our opinion in regard to the validity of the Texas Department of Corrections' policy of requiring its employees to complete one year of employment before they may become eligible to receive hazardous duty pay. Article 6252-20b, V.T.C.S., provides:

All commissioned law enforcement personnel of the Department of Public Safety, all commissioned law enforcement personnel of the State Purchasing and General Services Commission, all commissioned security officers of the State Treasury, all commissioned law enforcement personnel of the Texas Alcoholic Beverage Commission, all law enforcement officers commissioned by the Texas Parks and Wildlife Commission, all commissioned peace officers of state institutions of higher education, and all law enforcement personnel commissioned by the Texas Department of Corrections, and all employees or officials of the Board of Pardons and Paroles who have routine direct contact with inmates of any penal or correctional institution or with administratively released prisoners . . . of existing hazardous duty or longevity pay. (Emphasis added).

You have only asked about the construction of this act from the period beginning September 1, 1983 to the present. The General Appropriations Act for the biennium beginning September 1, 1983, provides:

27. . . . that Department of Corrections is authorized to pay hazardous duty pay at a rate of Seven Dollars ($7.00) per month for each year of State service up to and including the 30th year for the following classifications: Warden II, Warden I, Assistant Warden, Major of Correctional Officers, Captain of Correctional Officers, Lieutenant of Correctional Officers, Sergeant of Correctional Officers, Correctional Officer III, Correctional Officer II and Correctional Officer I. Employees in other classifications who work within the prison compound or whose work requires daily contact with inmates may also receive hazardous duty pay; however, the total number of employees in other classifications eligible to receive hazardous duty pay shall not exceed 500 non-unit employees. A list of such employees shall be filed annually with the Governor's Office of Management and Budget and the Legislative Budget Board. (Emphasis added).

Acts 1983, 68th Leg., ch. 1095, at 5794. The General Appropriations Act for the biennium beginning September 1, 1985, provides in part:

The Department of Corrections is authorized to pay . . . A. All persons classified as Correctional Officer I through Warden. . . . (Emphasis added).

Acts 1985, 69th Leg., ch. 980, at 7353.

You have informed us that TDC policy states that, when a new correctional officer is employed, the new employee is classified as a Correctional Officer I for a one-month training period, and then as a Correctional Officer II for a six-month probationary period, and then as a Correctional Officer III. However, under the TDC hazardous duty policy, no correctional officers are granted hazardous duty pay for the first five months of occupying these positions. The issue is, therefore, whether the phrase "for each year of state service" as used in article 6252-20b, and the Appropriations Act require that a correctional officer complete one year of employment with TDC before the employee is entitled to hazardous duty pay. For the following reasons, we conclude that article 6252-20b, V.T.C.S., which authorizes TDC to require its employees to complete one year of employment before they may become eligible to receive hazardous duty pay, is valid.

The TDC is an administrative agency of the state and is authorized to promulgate rules and regulations which are not inconsistent with its enabling act and other state statutes. See V.T.C.S. art. 6166a et seq. (enabling act); V.T.C.S. art. 6252-13a, § 3(1) (definition of state agency); Stanfield v. Texas Department of Public Safety, 422 S.W.2d 14 (Tex. Civ. App. - Dallas 1967, writ ref'd n.r.e.). Article 6252-20b, V.T.C.S., specifically authorizes TDC to award hazardous duty pay to "all law enforcement personnel" entitled to receive it. However, these law enforcement officials must also meet the required statutory time of service with the department.

It is our opinion that the legislature's use of the words "for each year of state service" is unambiguous and its meaning is clear and obvious. Wall v. Wall, 172 S.W.2d 181 (Tex. Civ. App. - Amarillo 1943, writ ref'd w.o.m.). The legislature specified the minimum amount of time, one year, in which an employee must serve before the benefit may be awarded. We are not at liberty to enlarge or modify this time period. The employee must have completed one year of service before he can be awarded these benefits.

Moreover, this office has consistently held that when the length of service is used to establish state employee benefit entitlements in state statutes and appropriations acts, the specified amount of service means the completion of the period of time specified. See Attorney General Opinions MW-282 (1980); H-341 (1974); M-984 (1971). Accordingly, TDC is authorized to require its employees to complete one year of employment before they may become eligible to receive hazardous duty pay.

SUMMARY

Article 6252-20b, V.T.C.S., authorizes the Texas Department of Corrections to require its employees to complete one year of employment before they may become eligible to receive hazardous duty pay.

Very truly yours,

Jim Mattox
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General