Untitled Texas Attorney General Opinion ( 1973 )

AInunnr, TISSAW anal1
June 13, 1973
The Honorable Weldon C. Wells Opinion No. H- 51
County Auditor
,202 County Courthouse Re: Whether Commissioners Court
Waco, Texas 76701 may authorize payments to
survivors of a deceased employee.
Dear Mr. Wells:
You have requested the opinion of this office on the following questions:
“1. May the Commissioners Court authorize
payment to the beneficiaries of a deceased employee
for unused vacation time and/or other compensation
to which the employee was entitled at the time of his
death?
“2. May the Commissioners Court authorize any
payment to the beneficiaries of a deceased employee on
behalf of the employee for a period subsequent to the
time of his death?”
In your letter you state that this request was prompted by an order of
the Commissioners Court that a change beg made in county policy relative
to the death of county employees, retroactive to June 1, 1972, and effective
immediately. The change would provide a death benefit of a determinable
amount plus monetary compensation for any accrued and unused vacation
time based on the employee’s monthly per diem rate.
Section 51 of Art.icle j of t~heTexas Constitution provides in part:
“The Legislature shall have no power to make
any grant or authorize the making of any grant of
public moneys to any individual, association of in-
dividuals, municipal or olhcr corporations what,-
soever . . . .I’
p. 213
The Honorable Weldon C. Wells, page 2 (H-51)
Section 52 of Article 3 of the Texas Constitution provides in part:
“Except as otherwise provided by this section,
the Legislature shall have no power to authoriee any
county, city, town or other political corporation or
subdivision of the State to lend its credit or to grant
public money or thing of value in aid of, or to any
individual, association or corporation whatsoever,
or to become a stockholder in such corporation,
association or company . . . . ”
Section 53 of Article 3 of the Texas Constitution provides:
“The Legislature shall have no power to grant
or to authorize any county or municipal authority to
grant, any extra compensation, fee or allowance to
a public officer, agent, servant or contractor, after
service has been rendered, or a contract has been
entered into, and performed in whole or in part; nor
pay nor authorize payment of, any claim created against
any county or municipality of the State, under any agree-
ment or contract, made without authority of law. ”
The Legislature has authorized compensation for county employees
by enactment of Article 3912k, Vernon’s Texas Civil Statutes, which
provides in part:
“Except as otherwise provided by this Act
and subject to the limitations of this Act, the
Commissioners Court of each county shall fix
the amount of compensation, office expense,
travel expense, and all other allowances for
county and precinct officials and employees who
are paid wholly from county funds, but in no
event shall such salaries be set lower than they
exist at rhe effective date of this Act. ”
While this statute authorizes the county to,fix the amount of compensation
its employees shall receive, it does not and cannot authorize the counties
to do that which is prohibited by the previously quoted provisions of the Texas
p. 214
. .
The Honorable Weldon C. Wells, Page 3 (H-51)’
ConstituLion. It is therefore our opinion that the action of the commissioners
court under consideration cannot be given the attempted retroactive effect.
and can only have effect after the date of passage. Pierson v. Galveston
County, 131 S.W.2d 27 (Tex. Civ. App., 1939); Empire Gas & Fuel CO. v. Stale,
47 S. W. Zd 265 (Tex. 1932).
The order of the commissioners court authorizing payment of funds to
the survivors of a deceased employee , measured by the salary of said
employee, but to which said employee had no right at the time of his death,
is in the nature of a death benefit provision. Ti?ere is no authority for the
commissioners court to provide death benefits in this manner.
Article 16, § 62(b), Texas Constitution, authorizes each county to provide
for and administer a Retirement., Disability and Death Compensation Fund,
but. does not authorize such benefits as those set out in the order under exam-
ination.
The commissioners court is a court of limited jurisdiction and has
only such powers as are conferred upon it by the Constitution and statutes
of this State either by express terms or by necessary implication. Childress
County v. State, 92 S. W. 2d 1011(Tex. 1936); Hill v. Sterrett, 252 S. W. td 766
(Tex. Civ. App. , 1952, error ref. 1 n. r. e. ); Von Rosenberg v. Lovett, 173
S.W. 508 (Tex. Civ. App., 1915, error ref. ); Roper v. Hall, 280 S.W. 289
(Tex. Civ. App. , 1925). The attempted grant of death benefits, in our
opinion, is not authorized by the constitutional and statutory provisions
relative thereto, and therefore constitutes an attempted grant or gift of
public moneys to individuals in violation of the previously quoted consti-
tutional provisions.
Your request for our opinion coucerning unused vacation time and other
compensation to which the employee was entitled recognizes that the payment
under discussion is of compensation previously earned by the employee. lt
is therefore our opinion that such payments would not constitute a gift or
grant of public moneys. lt is also our opinion that the commissioners court
IS authorized to make such payment~s for previously earned unused, vacation
time Bnd other compensation by the provisions of Article 3912k, ‘V. T. C. S.,
which states that such court “shall fix the amount of compensation, office
expense, travel expense and all other allowances. ”
p. 215
The Honorable Weldon C. Wells, page 4 (H-51)
SUMMARY
Upon the death of an employee, the Commissioners
Court may authorire payments of accrued vacation time
and for other earned compensation but may not authorize
payment at death of other benefits not previously earned
or accrued.
Very truly yours,
c/ Attorney General of Texas
DAVID M, KENDALL, Chairman
Opinion Committee
p. 216
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