Untitled Texas Attorney General Opinion ( 2008 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 2,2008
The Honorable Russell W. Malm Opinion No. GA-0661
Midland County Attorney
200 West Wall Street, Suite 104 Re: Whether a county is authorized to pay a
Midland, Texas 79701 performaIice-based bonus to elected officials
(RQ-0686-GA)
Dear Mr. MaIm:
You relate that the Midland County Judge would like to adopt "a plan which would authorize
performance-based bonuses for elected officials.'" You explain how this bonus plan for elected
officials would work:
Under this plan, the bonuses would be based upon some quantifiable
system of measuring performance. If an elected official meets the
stated performance goals during the budget year, a bonus would
be awarded at that time. The plan would be approved by the
Commissioners Court during the regular budget hearing and adoption
proceedings, but the bonuses would be paid during the budget year.
The bonus would not be paid unless the elected official met the stated
performance goal.
Request Letter, supra note 1, at 1. Specifically, you ask whether the "county [may] pay a
performance bonus to elected officials in addition to their salary," and if so, in what marmer the
Commissioners Court should "list the bonus in the publication of proposed salary increases." Id
The commissioners court is the governing body of a county, but it exercises only those
powers expressly conferred by the Texas Constitution or statutes or those powers necessarily implied
therefrom. See City ofSan Antonio v. City ofBoerne, III S.W.3d 22, 27-28 (Tex. 2003); Canales
v. Laughlin, 214 S.W.2d 451,453 (Tex. 1948). Among those powers is the 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."
lLetter from Honorable Russell W. MaIm, Midland County Attorney, to Honorable Greg Abbott, Attorney
General of Texas, at I (Mar. 6, 2008) (on file witb tbe Opinion Committee, also available at http://www
.texasattomeygeneral.gov) [hereinafter Request Letter].
The Honorable Russell W. Maim - Page 2 (GA-0661)
TEx. Lac. Gov'T CODE ANN. § 152.011 (Veni.on 2008). "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." Tex. Att'y Gen. Op. No. GA-0303 (2005) at 2.·
In considering the propriety of bonus awards to county employees, this office has said that
"[a] bonus may be paid to a county employee only if the commissioners court has approved the
bonus plan as part of compensation before the services are rendered," so as not to violate article III,
section 53 of the Texas Constitution. Tex. Att'y Gen. Op. No. JM-1253 (1990) at 2-3 (emphasis
added); see TEx. CaNST. art. III, § 53 ("The Legislature shall have no power to grant, or to authorize
any county ... to grant, any extra compensation, fee or allowance to a public officer, agent, servant
or contractor, after service has been rendered ...."). See also Tex. Att'y Gen. Op. Nos. JC-0376
(2001) at 4 ("Retroactive increases in compensation [paid to employees of a county court] for
services already rendered violate article III, section 53 of the Texas Constitution. Prospective
increases in compensation do not."); GA-0492 (2006) at 2 ("a county may provide bonuses based
on perfonnance ifthe county approved a bonus plan before employee recipients perfonned the work
for which the bonuses are given") (emphasis added). This office has never been asked about a
.county's authority to adopt a bonus plan for elected county officials, however, and we find no Texas
court decisions on the issue. Your question is thus one of first impression, and given its novelty, we
limit our response to the bonus plan you describe, which is conditioned on the accomplishment of
perfonnance goals established by the Commissioners Court.
Despite a commissioners court's extensive authority in county budgetary matters, it does not
follow that a commissioners court may set perfonnance goals, and pay bonuses contingent upon
achievement of those perfonnance goals, for independently elected county officials. "[E]lected
county officials hold 'virtually absolute sway over the particular tasks or areas of responsibility
entrusted to [them] by state statute. '" Hooten v. Enriquez, 863 S.W.2d 522, 531 (Tex. App.-El
Paso 1993, no writ) (quoting Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)). "In
Texas, an elected officer occupies a sphere .of authority, which is delegated to that officer by the
Constitution and laws, which another officer may not interfere with or usurp." Abbott v. Pollock,
946 S.W.2d 513, 517 (Tex. App.-Austin 1997, pet. denied) (citing Pritchard&Abbott v. McKenna,
350 S.W.2d 333, 335 (Tex. 1961)); see Renken v. Harris County, 808 S.W.2d 222, 226 (Tex.
App.-Houston [14th Dist.] 1991, no writ). 2 The sphere-of-authority limitation on a commissioners
court's powers is "founded in the policy that elected officers ... discharge the public trust and carry .
the responsibility for the proper discharge of that trust." Abbott, 946 S.W.2d at 517.
Prior opinions of this office have established that an officer's sphere of authority
encompasses the power to "detennin[e] how to deploy the resources placed at his disposal," to hire
and dismiss employees ofthe officer's choosing without interference from the commissioners court,
to set the officer's employees' work schedule, and to assign employees as the officer sees fit to
accomplish the duties of his office. Tex. Att'y Gen. Op. No. JC-0214 (2000) at 5. In one earlier
'Elected county offices are, for the most part, established by the Texas Constitution. See, e.g., TEx. CONST. art.
Y, § 18 (constable); id art. Y, § 19 (justice of the peace); id art. Y, § 20 (county clerk); id art. Y, § 21 (district and
county attorney); id art. V, § 23 (sherifl:); id art. XVI, § 44 (treasurer and surveyor).
The Honorable Russell W. MaIm - Page 3 (GA-0661)
opinion, this office said that "[a]n elected county official's authority to accomplish the constitutional
or statutory purposes ofhis of her office encompasses the authority to dismiss his or her employees
for all or part of a day for any reason." Tex. Att'y Gen. Op. No. JC-0239 (2000) at 7. While "the
commissioners court retains control over the budgetary aspects of the county's employment
relationships, ... the county officer retains control over the accomplishment of his or her
constitutional and statutory duties through, among other things, the administration of his or her
office." Id at 3. See also Tex. Att'y Gen. Op. Nos. GA-0303 (2005) at 2 (elected official may
permit his employees to leave the office for holiday shopping or travel without being required to
charge such absence to accrued leave); GA-0037 (2003) at 4 (commissioners court may not, during
a budget year, "'freeze' a vacant position by requiring an elected officer to promote an existing
county employee or to obtain the court's" permission to fill the vacancy); JM-52l (1986) at 3
(commissioners court may not set working conditions for other county officials). In sum, the court
"may not micro-manage" an elected official's decisions as to the use of his resources. Tex. Att'y
Gen. Op. No. JC-0239 (2000) at 3.
These examples illustrate. the independent nature of an elected county official's sphere of
authority, his discretion within that sphere of authority, and the lack of the commissioners court's
authority to interfere with that discretion. Although a commissioners court may take into
consideration a county official's performance when it considers the official's overall budget for the
following year, we believe that to overtly condition an elected official's possible future bonus on the
achievement ofcommissioners-court-established performance goals would impermissibly interfere
with, and intrude upon, that official's sphere of authority. Were the official to permit his discretion
to be influenced by the court's performance goals, he might, consciously or otherwise, focus his
primary attention on achieving the court's goals rather than performing his statutory and
constitutional duties as he understands them. An elected official's performance is properly judged
by those who elected him.
Because a bonus plan that is premised on accomplished performance goals set by a
commissioners court may improperly interfere with an elected official's constitutionally based sphere
ofauthority, we cannot advise you that the Commissioners Court is authorized to adopt such a plan.
Given, this conclusion, we need not address your second question, regarding the manner in which
the Commissioners Court should "list the bonus in the publication of proposed salary increases."
Request Letter, supra note 1, at 1.
The Honorable Russell W. MaIm - Page 4 (GA-0661)
SUMMARY
A bonus plan that is premised on accomplished performance
goals set by a commissioners court may improperly interfere with an
elected official's constitutionally based sphere ofauthority. Thus, we
cannot advise that a commissioners court is authorized to adopt such
a plan.
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee