SECTION 5.39. Hazardous Duty Pay

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Calendar month--The period from the first day through the last day of January, February, March, April, May, June, July, August, September, October, November, or December.

(2) Classified position--A position included in the position classification plan in the General Appropriations Act, Article IX.

(3) Correctional officer--An employee in a job class designated by TDCJ as a correctional officer holding a hazardous duty position.

(4) Day--The 24 consecutive hour period beginning at 12:00 midnight and ending at 11:59 p.m.

(5) Full-time state employee--Has the meaning assigned by Government Code, §659.301(1).

(6) Hazardous duty position--A position in the service of the state that:

(A) renders any individual holding that position a "state employee," as defined in paragraph (11) of this subsection; or

(B) requires the performance of hazardous duty.

(7) Lifetime service credit--The number of months that an individual has served in a hazardous duty position during the individual's lifetime.

(8) Part-time state employee--Has the meaning assigned by Government Code, §659.301(4).

(9) Regular hours--The number of hours an individual actually works during a month.

(10) Standard hours--The total number of hours that an individual would work during a month if the individual worked exactly eight hours during each workday of that month.

(11) State employee--An individual who is a state employee under subsection (b)(1)(A) or (b)(2)(A) of this section.

(12) TABC--The Texas Alcoholic Beverage Commission.

(13) TDCJ--The Texas Department of Criminal Justice.

(14) TJJD--The Texas Juvenile Justice Department.

(15) TPWD--The Texas Parks and Wildlife Department.

(16) Type 1 grandfathered employee--A state employee whose compensation for services provided to the state during any month before August 1987, included hazardous duty pay that was based on total state service performed before May 29, 1987.

(17) Type 2 grandfathered employee--An individual who is entitled to receive hazardous duty pay under subsection (g) of this section.

(18) Workday--Has the meaning assigned by Government Code, §659.301(6).

(b) Receiving hazardous duty pay.

(1) Individuals not employed by TJJD.

(A) In this paragraph, "state employee" has the meaning assigned by Government Code, §659.301(5).

(B) Hazardous duty pay may not be paid to an individual who does not satisfy both of the criteria in Government Code, §659.302(a), except as provided in subsection (g) of this section, concerning type 2 grandfathered employees.

(C) An individual's ceasing to be a state employee sometime during a month does not affect the individual's hazardous duty pay entitlement for that month. The full amount of hazardous duty pay must be paid to the individual.

(D) For purposes of Government Code, §659.302(a)(2), the 12 months of lifetime service credit are not required to be 12 continuous months.

(E) This paragraph does not apply to an individual employed by TJJD.

(2) Individuals employed by TJJD.

(A) In this paragraph, "state employee" means an individual who:

(i) has routine direct contact with youth:

(I) placed in a residential facility of TJJD; or

(II) released under TJJD's supervision; or

(ii) is an investigator, inspector general, security officer, or apprehension specialist employed by TJJD's office of the inspector general.

(B) Except as provided in Government Code, §659.303, TJJD may include hazardous duty pay in the compensation paid to an individual for services rendered during a month if the individual:

(i) is a state employee for any portion of the first workday of the month; and

(ii) has completed at least 12 months of lifetime service credit not later than the last day of the preceding month.

(C) Hazardous duty pay may not be paid to an individual who does not satisfy both of the criteria in subparagraph (B) of this paragraph.

(D) An individual's ceasing to be a state employee sometime during a month does not affect the individual's hazardous duty pay eligibility for that month.

(E) For purposes of subparagraph (B)(ii) of this paragraph, the 12 months of lifetime service credit are not required to be 12 continuous months.

(F) This paragraph applies only to an individual employed by TJJD.

(c) Amount of hazardous duty pay.

(1) Monthly amount for individuals employed by TJJD.

(A) The amount of hazardous duty pay that TJJD pays monthly to a full-time state employee must be expressed in terms of a specific dollar amount for each 12-month period of lifetime service credit and, for type 1 grandfathered employees, for each 12-month period of state service credit. The amount must be the same for each type of service credit.

(B) The amount of hazardous duty pay that TJJD pays monthly to a full-time state employee may not exceed $10 for each 12-month period of lifetime service credit accrued by the employee.

(C) In this paragraph, "state employee" has the meaning assigned by subsection (b)(2)(A) of this section.

(D) This paragraph applies only to an individual employed by TJJD.

(2) Part-time state employees.

(A) The amount of a part-time state employee's hazardous duty pay is equal to the product of:

(i) the amount of hazardous duty pay that the employee would receive if the employee were a full-time state employee; and

(ii) a quotient:

(I) the numerator of which is equal to the number of hours the employee normally works each week, not to exceed 40; and

(II) the denominator of which is equal to 40.

(B) For purposes of subparagraph (A)(ii)(I) of this paragraph, the number of hours that a part-time state employee normally works each week during a particular month is equal to the number of hours that the employee is scheduled to work each week as of the first workday of that month.

(3) Hourly state employees. The amount of an hourly state employee's hazardous duty pay for a particular month is equal to the product of:

(A) the amount of hazardous duty pay that the employee would receive if the employee were a full-time state employee; and

(B) a quotient:

(i) the numerator of which is equal to the number of regular hours for the employee for that month, not to exceed the number of standard hours for that month; and

(ii) the denominator of which is equal to the number of standard hours for that month.

(4) Correctional officers of TDCJ.

(A) The amount of hazardous duty pay for a particular month for a full-time correctional officer employed by TDCJ is the lesser of:

(i) $12 for each 12-month period of lifetime service credit accrued by the employee; or

(ii) $300.

(B) The amount of hazardous duty pay that TDCJ pays a part-time correctional officer is equal to the product of:

(i) the amount of hazardous duty pay that the employee would receive if the employee were a full-time correctional officer; and

(ii) a quotient:

(I) the numerator of which is equal to the number of hours the employee normally works each week, not to exceed 40; and

(II) the denominator of which is equal to 40.

(C) The amount of hazardous duty pay that TDCJ pays an hourly correctional officer is equal to the product of:

(i) the amount of hazardous duty pay that the employee would receive if the employee were a full-time correctional officer; and

(ii) a quotient:

(I) the numerator of which is equal to the number of regular hours for the employee for that month, not to exceed the number of standard hours for that month; and

(II) the denominator of which is equal to the number of standard hours for that month.

(d) Timing for payment of hazardous duty pay.

(1) Employees paid once each month.

(A) This paragraph applies to a state employee only if the employee is normally paid once each month.

(B) Any hazardous duty pay that is included in the compensation earned by a state employee during a particular month must be paid in its entirety at the same time the compensation is paid to the employee.

(2) Employees paid twice each month.

(A) This paragraph applies to a state employee only if the employee is normally paid twice each month.

(B) Any hazardous duty pay that is included in the compensation earned by a state employee during a particular month must be paid in its entirety at the same time that the compensation earned by the employee during the first half of the month is paid to the employee.

(3) Employees paid once every two weeks.

(A) This paragraph applies to a state employee only if the employee is normally paid once every two weeks.

(B) The hazardous duty pay that is included in the compensation earned by a state employee during a particular month must be paid in its entirety on the pay day that is closest to the date that a monthly employee is paid the compensation earned by the employee during that month.

(e) Lifetime service credit.

(1) Accrual. An individual accrues lifetime service credit for the period the individual holds a hazardous duty position. However, an individual who is on leave without pay for a full calendar month does not accrue lifetime service credit for the month.

(2) Amount. The amount of an individual's lifetime service credit at any particular time is equal to the number of months that have elapsed since the individual's effective service date. A month begins on the same day each month as the effective service date and ends on the day before that day during the next month, regardless of how many days are included in the month.

(3) Effective service date.

(A) An individual's "effective service date" is used to determine the amount of the individual's lifetime service credit for the purpose of hazardous duty pay.

(B) "Effective service date" is determined by completing the following steps:

(i) adding together all days the individual was employed in a hazardous duty position in all previous periods of employment with the state;

(ii) counting backward from the first day of the individual's current continuous employment with the state in a hazardous duty position using the total number of days calculated in clause (i) of this subparagraph; and

(iii) counting forward the number of months in which the individual was on leave without pay for any full calendar month during all periods of employment in a hazardous duty position using the date calculated in clause (ii) of this subparagraph.

(C) An example of determining a state employee's effective service date is as follows: The employee's first day of employment at your agency is February 5, 2021. The employee was previously employed in a hazardous duty position from October 8, 2011 to August 31, 2017, or 2,155 days. During that employment, the employee had one period of leave without pay from December 7, 2015 to February 2, 2016, for a total of one full calendar month of leave without pay. To determine the employee's effective service date, first count backwards 2,155 days from February 5, 2021 to arrive at March 15, 2015. Then count forward one month (the number of months in which the individual was on leave without pay for any full calendar month during all periods of employment in a hazardous duty position) from March 15, 2015 to arrive at April 15, 2015, which is the employee's effective service date.

(D) An individual accrues one full day of credit for any part of a day the individual is employed in a hazardous duty position.

(4) Transfers. For the purposes of paragraph (3) of this subsection, an individual's transfer from one state agency to another does not interrupt continuity of employment if no workdays occur between the two employments.

(f) Exceptions for type 1 grandfathered employees.

(1) State service credit. For purposes of this subsection, the amount of an individual's state service credit equals the sum of:

(A) the amount of the individual's lifetime service credit; and

(B) the number of months during the individual's lifetime that the individual has provided services to the state in a position that is not a hazardous duty position.

(2) Applicability of other subsections. Subsections (a) - (e) of this section apply to a type 1 grandfathered employee except as provided in this subsection.

(3) Amount for non-hourly employees.

(A) The amount of hazardous duty pay for a type 1 grandfathered employee who is not hourly and who is not employed by TJJD is equal to the sum of:

(i) $10 for each 12-month period of state service credit the employee finished accruing before May 29, 1987; and

(ii) $10 for each 12-month period of lifetime service credit that is accrued after the date, which must be before May 29, 1987, on which the employee finished accruing the last 12-month period of state service credit.

(B) The amount of hazardous duty pay for a type 1 grandfathered employee who is not hourly and who is employed by TJJD is equal to the sum of:

(i) the dollar amount specified by TJJD under subsection (c)(2) of this section for each 12-month period of state service credit the employee finished accruing before May 29, 1987; and

(ii) the dollar amount specified by TJJD under subsection (c)(2) of this section for each 12-month period of lifetime service credit that is accrued after the date, which must be before May 29, 1987, on which the employee finished accruing the last 12-month period of state service credit.

(4) Amount for hourly employees. The amount of hazardous duty pay for an hourly type 1 grandfathered employee is equal to the product of:

(A) the amount calculated under paragraph (3) of this subsection; and

(B) a quotient:

(i) the numerator of which is equal to the number of regular hours for the employee for that month, not to exceed the number of standard hours for that month; and

(ii) the denominator of which is equal to the number of standard hours for that month.

(5) Limitation. A type 1 grandfathered employee may not receive more than $10 for each 12-month period of state service credit or lifetime service credit, regardless of the number of positions the employee holds or the number of hours the employee works each week.

(g) Exceptions for type 2 grandfathered employees.

(1) Applicability of other subsections. Subsections (a) - (e) of this section apply to a type 2 grandfathered employee as if the employee were a state employee, except as provided in this subsection.

(2) Entitlement for certain TPWD personnel. Hazardous duty pay must be included in the compensation paid for services rendered to the state during a month by an individual who:

(A) is not a state employee on the first workday of that month;

(B) is one of the commissioned law enforcement personnel of TPWD for any portion of the first workday of that month; and

(C) on May 29, 1987, was receiving or was entitled to receive hazardous duty pay because the individual on that date was one of the commissioned law enforcement personnel of TPWD.

(3) Entitlement for certain employees of TDCJ. Hazardous duty pay must be included in the compensation paid for services rendered to the state during a month by an individual who:

(A) is not a state employee on the first workday of that month;

(B) holds any of the following positions with TDCJ for any portion of the first workday of that month:

(i) correctional officer I through warden;

(ii) a position that requires the individual to work on a unit and have routine direct contact with inmates, e.g., farm manager, livestock supervisor, maintenance foreman, shop foreman, medical assistant, food service supervisor, steward, education consultant, commodity specialist, correctional counselor;

(iii) a position assigned to an administrative office and requiring routine direct contact with inmates, e.g., investigator, compliance monitor, an accountant routinely required to audit unit operations, sociologist, interviewer, classification officer, supervising counselor;

(iv) a position that requires the individual to respond to emergency situations involving inmates, e.g., director, deputy director, assistant director, administrative duty offices, except that not more than 25 administrative duty officers may qualify under this clause;

(v) a position that requires the individual to work within the prison compound or have daily contact with inmates, except that not more than 500 individuals may qualify under this clause; or

(vi) warden I or II, assistant warden, major of correctional officers, captain of correctional officers, lieutenant of correctional officers, sergeant of correctional officers, or correctional officer I, II, or III; and

(C) on May 29, 1987, was receiving or was eligible to receive hazardous duty pay because the individual on that date held a position with the Texas Department of Corrections that is listed in subparagraph (B) of this paragraph.

(4) Entitlement for certain employees of TABC. Hazardous duty pay must be included in the compensation paid for services rendered to the state during a month by an individual who:

(A) is not a state employee on the first workday of that month;

(B) holds any of the following positions with TABC for any portion of the first workday of that month:

(i) chief or assistant chief of enforcement and marketing practices;

(ii) district supervisor or assistant district supervisor;

(iii) senior agent or agent I, II, or III;

(iv) port of entry supervisor or port of entry inspector I or II;

(v) supervising auditor I or II or auditor I, II, or III;

(vi) assistant director of auditing and tax reporting; or

(vii) senior tax auditor; and

(C) on May 29, 1987, was receiving or was eligible or entitled to receive hazardous duty pay because the individual on that date:

(i) held a position with TABC that is listed in subparagraph (B)(i) - (iii) of this paragraph; or

(ii) both:

(I) held a position with TABC that is listed in subparagraph (B)(iv) - (vii) of this paragraph; and

(II) was receiving hazardous duty pay on August 31, 1981, because the individual on that date was engaged in full time law enforcement work while holding any of the following classified positions:

(-a-) supervisor tax collector;

(-b-) tax collector I or II;

(-c-) district supervisor;

(-d-) chief or assistant chief, enforcement division;

(-e-) assistant district supervisor;

(-f-) inspector I or II;

(-g-) supervising auditor I;

(-h-) auditor I, II, or III;

(-i-) supervisor or assistant supervisor, marketing practices;

(-j-) special project director;

(-k-) director of auditing; or

(-l-) assistant director of auditing.

Source Note: The provisions of this §5.39 adopted to be effective September 28, 2004, 29 TexReg 9202; amended to be effective February 16, 2006, 31 TexReg 857; amended to be effective February 17, 2008, 33 TexReg 1119; amended to be effective June 2, 2021, 46 TexReg 3417