Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 2,2005
The Honorable Ronald D. Hankins Opinion No. GA-0303
Somervell County Attorney
Post Office Box 1335 Re: Whether an elected county official may close his
Glen Rose, Texas 76043 office on a day declared by the Governor of Texas to
be an “official day of mourning” (RQ-0267-GA)
Dear Mr. Hankins:
You ask whether an elected county official may close his office on a day declared by the
Governor to be an official day ofmouming. Ifthe official closes his office for this purpose, you ask
whether the County Auditor may treat the official day ofmourning as a vacation day in compensating
the official’s employees.’
After former President Ronald Reagan died, Governor Rick Perry declared in Executive
Order RP34 that Friday, June 11, 2004, would be an official day of mourning and that all state
offices would be closed to allow state employees to attend ceremonies in honor of President
Reagan’s memory. See Tex. Gov. Exec. Order No. RP34; 29 Tex. Reg. 5985 (2004). While some
counties ordered their offices closed on June 11, 2004, the Commissioners Court of Somervell
County did not. See Request Letter, supra note 1, at 1. In Somervell County, however, the Justice
ofthe Peace of Precinct Two closed his office for the day and so informed his clerk. See id. See also
TEX. GOV’T CODE ANN. 5 27.056(a) (Vernon 2004) (justice of the peace may designate one or more
persons to serve as clerks). When the next pay period for county employees arrived, the County
Auditor for Somervell County charged the clerk a vacation day for June 11, the day on which the
Justice’s office was closed.
You ask whether Attorney General Opinion JC-0131 (1999) governs the elected officer’s
closing of his office in observance of the official day of mourning. Request Letter, supra note 1,
at 2. You also ask whether the County Auditor of Somervell County is authorized to determine how
the clerk’s time is to be charged for the day on which the Justice of the Peace closed his office. Id.
Attorney General Opinion JC-013 1 concluded that an elected or appointed county official
was authorized to close his office on account ofbadweather, repairs, and the like and that employees
‘Letter from Honorable Ronald D. Hankins, Somervell County Attorney, to Honorable Greg Abbott, Texas
Attorney General (Aug. 25, 2004) (on tile with Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Ronald D. Hankins - Page 2 (GA-0303)
of the office were entitled to compensation for the time they could not work because of an office
closure. See Tex. Att’y Gen. Op. No. JC-0131 (1999) at 2-3. Even more relevant to your question
is Attorney General Opinion JC-0239, which considered whether a county officer might close his
office for reasons not related to “bad weather, repairs, and the like.” Tex. Att’y Gen. Op. NO.
JC-0239 (2000) at 1. We will review these opinions and the authorities they cite.
A commissioners court has authority with certain exceptions to “set the amount of the
compensation, office and travel expenses, and all other allowances for county and precinct officers
and employees who are paid wholly from county funds.” TEX. LOC. GOV’T CODE ANN. 5 152.011
(Vernon 1999). Under section 152.011, the court may confer upon county officers and employees
such benefits as longevity pay, vacation leave, sick leave, and paid holidays. See, e.g., Tex. Att’y
Gen. Op. Nos. JM-910 (1988) at 4 (vacation and sick leave), MW-438 (1982) at 2 (paid holidays);
Tex. Att’y Gen. LO-96-007, at 2 (longevity pay).
However, a commissioners court ordinarily lacks authority to set the office hours of other
county officials and their employees. See Tex. Att’y Gen. Op. No. JC-0131 (1999) at 1. See also
City of San Antonio v. City ofBoerne, 111 S.W.3d 22,27-28 (Tex. 2003); Canales Y. Laughlin, 214
S.W.Zd 451,453 (Tex. 1948) (county commissioners have only the powers expressly conferred by
the Texas Constitution or statutes or necessarily implied therefrom). The commissioners court may
not interfere with the powers or duties of independent county officials and their employees.
Pritchard&Abbott v. McKenna, 350 S.W.2d 333,335 (Tex. 1961); Abbott v. Pollock, 946 S.W.2d
513, 517 (Tex. App.-Austin 1997, writ denied). The legislature has expressly authorized the
commissioners courts of some counties to establish the work hours of county employees. See TEX.
LOC.GOV’TCODEANN. $157.021(a)(Vemon 1999)( in county with population of 355,000 or more,
a commissioners court is authorized to adopt uniform rules on the hours ofwork of employees whose
compensation is set or approved by the court); id. 5 158.035(a) (adoption ofworking conditions in
civil service counties). No such statute applies to the Somervell County Commissioners Court.
Absent such express authority, a commissioners court may not interfere with a county official’s
authority to set the hours that his office will be open or his implied authority to set the working
conditions for his employees. See Tex. Att’y Gen. Op. Nos. JC-0239 (2000) at 3, JC-0131 (1999)
at 3. See Tex. Att’y Gen. Op. Nos. C-350 (1964) at l-2 (constitutional countyofftcer may close his
office on Saturday without approval of commissioners court); O-6679 (1945) at 2 (commissioners
court lacks authority to require county of&es to be open 48 hours a week). Attorney General
Opinion JC-0239, building on the reasoning of Attorney General Opinion JC-013 1, concluded that
a county officer’s dismissal of employees for reasons other than bad
weather, repairs, and the like is within the officer’s authority and not
the authority of the commissioners court. [I]t is for the officer to
determine what activities constitute a legitimate use of an employee’s
official time, i.e., work time rather than vacation time.
Tex. Att’y Gen. Op. No. JC-0239 (2000) at 4. See also id. at 5 (authority of commissioners court
to condition county employees’ compensation on working or accounting for forty hours ofwork each
week). Allowing the employees to take a day off must serve a public purpose within article III,
The Honorable Ronald D. Hankins - Page 3 (GA-0303)
section 52 of the Texas Constitution, which provides that the legislature shall have no power to
authorize any county to grant public money to any individual. See TEX. CONST. art. IU, $52(a). See
also Tex. Att’y Gen. Op. No. JC-0239 (2000) at 4 (improving employee morale may be a sufficient
public purpose for granting time off); Tex. Att’y Gen. LO-96-136, at l-2 (expenditures to purchase
small gifts, plaques, or flowers for funerals, weddings, or retirements of county employees may serve
public purpose of increasing employee morale). Whether a particular office closure serves a public
purpose must be determined in the first instance by the public official, whose decision is subject to
judicial review. See Tex. Att’y Gen. Op. No. E-01 19 (1999) at 4.
Attorney General Opinion K-0239 provides the answer to your question. The Somervell
County Justice of the Peace, Precinct Two, has authority to decide to close his office and allow his
clerk to take the day off in observance of the official day of mourning. Tex. Att’y Gen. Op. No.
JC-0239 (2000) at 4. His decision that closing his office serves a public purpose is subject to judicial
review. See id.
You also ask whether the County Auditor of Somervell County is authorized to determine
how the clerk’s time is to be charged for the day on which the Justice of the Peace closed his office
for the official day of mourning. See Request Letter, supra note 1, at 2. Where an employee’s right
to salary is established as a matter of law, the auditor has a ministerial duty to approve the payment.
See Smith v. McCoy, 533 S.W.2d 457,460 (Tex. Civ. App.-Dallas 1976, writ dism’d); Tex. Att’y
Gen. Op. No. JC-013 1 (1999) at 4. Once the salaries of county officers and employees are set, the
salaries may not be reduced to account for office closures and “neither the commissioners court nor
the county treasurer nor the county auditor may reduce the officers or employees’ pay or require that
the time be charged to leave time.” See Tex. Att’y Gen. Op. No. JC-013 I(1 999) at 3. Accord Tex.
Att’y Gen. Op. No. JC-0239 (2000) at 3. We conclude that the Somervell County Auditor has a
ministerial duty to approve payment ofthe clerk’s salary for the official day of mourning as a regular
work day and may not charge it to leave time.
The Honorable Ronald D. Hankins - Page 4 (GA-03031
SUMMARY
A Somervell County official is authorized to set the hours that
his office will be open as well as his employees’ working conditions.
He may close the office and allow the employees to take the day
off, assuming that there is a public purpose for the closing. The
Somervell County Justice ofthe Peace, Precinct Two, was authorized
to close his office on June 11,2004 for the official day of mourning
honoring former President Ronald Reagan and to allow his clerk to
take the day off. The Somervell County Auditor has a ministerial
duty to approve payment of the clerk’s salary for the official day of
mourning as a regular work day and may not charge it to leave time.
Very truly yours,
eneral of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WJLLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee