Untitled Texas Attorney General Opinion ( 2007 )

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ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 25,2007
The Honorable Rex Emerson Opinion No. GA-0503
Kerr County Attorney
County Courthouse, Suite BA-103 Re: Whether a county commissioners court may
700 Main Street delegate nonstatutorily assigned duties to other
Kerrville, Texas 78028~ elected county officials (RQ-0504-GA)
Dear Mr. Emerson:
You ask whether a county commissioners court may delegate nonstatutorily assigned duties
to other elected county officials.’
In 1992 the Kerr County Commissioners Court approved an order designating the Kerr
County Treasurer as the county personnel officer! The order assigned several duties to the personnel
officer:
[The] Personnel Officer shall be required to and shall have the
responsibility of keeping and maintaining personnel tiles of each
county employee, as required by the Court or the personnel rule&]
assisting in the administration of the Kerr County Personnel Policies,
preparing reports and documentation .required by state and federal
agencies regarding personnel matters, maintaining time records,
monitoring accumulations of vacation, sick leave, and overtime,
administering the benefits programs, and. working with the County
Auditor in matters of accounting and compensation. The County
Personnel Officer shall assist Elected Officials, Department Heads,
and Supervisors in personnel matters and shall make such reports to
the Commissioners[] Court as may be requested by the Court.
Kerr County Commissioners Court, Order No. 21189: Appointment of Barbara Nemec as County
Personnel Officer (Nov. 23, 1992), attached to Tinley Brief, suyra note 2.
‘See Letter from Honorable Rex Emerson, Kerr County Attorney, to Honorable Greg Abbott, Attorney General
of Texas, at 1 (June 28, 2006) (on tile with the Opinion Committee, ako mailable af http:iiwww.oag.state.tu.us)
[hereinafter Request Letter].
%!kz Letter from Honorable Pat Tinley, Kerr County Judge, to Honorable Greg Abbott, Attorney General of
Texas, at 1 (Aug. 2,2006) (on tile with the Opinion Committee) [hereinafter Tinley Briefj.
The Honorable Rex Emerson - Page 2 (GA-0503)
The treasurer served as county personnel officer until June 12,2006, when she informed the
commissioners court that she “would no longer perform the human resource functions, citing a lack
of staff and/or financial resources.” Tinley Brief, supra note 2, at 1; see Memorandum to Kerr
County Judge Pat Tinley et al. from Barbara Nemec, Kerr County Treasurer (June 12, 2006),
attached to Tinley Brief, supra note 2. The county judge asserts that the commissioners court has
implied power to assign.to an officer of the commissioners court’s choosing duties and functions that
are not assigned by law to a specific officer. Brief attached to Request Letter, supra note 1, at 1.
The county judge further asserts that the treasurer may not unilaterally decline to perform tasks that
the commissioners court has delegated to her office. Id. And because the commissioners court
intends to review several elected county officials’ job descriptions, you believe the issue may arise
with respect to officers other than the treasurer. See id.
Under article V, section 18(b) ofthe Texas Constitution, a county commissioners court “shall
exercise such powers and jurisdiction over all county business, as is conferred by this Constitution
and the laws of the State.” TJZX.CONST.art. V, 5 18(b). As the Texas Supreme Court said in a 1997
case, Commissioners Court ofTitus County v. Agan, a commissioners court is “the county’s principal
governing body.” Commks Court of Titus County v. Agun, 940 S.W.2d 77, 79 (Tex. 1997).
Nevertheless, article V, section 1X(b) does not provide a commissioners court with “general and all-
,inclusive” jurisdiction over county business; rather, a commissioners court’s jurisdiction “is limited
to such as is specifically conferred by the Constitution and statutes.” Anderson v. Wood, 152 S.W.2d
1084, 1085 (Tex. 1941); accordCunalesv. Laughlin, 214 S.W.2d 451,‘453 (Tex. 1948). Where the
law confers a right or obligation on a commissioners, court, “it has implied authority to exercise a
broad discretion to accomplish the purposes intended.” Anderson, 152 S.W.2d at 1085. Moreover,
while the commissioners court “cannot take core functions” from an elected county official, it may
delegate to an “appropriate county official” a function that the Legislature has not exclusively
assigned to a particular county official. Agan, 940 S. W.2d at X0-8 1; accord Tex. Att’y Gen. Op.
Nos. GA-0277 (2004) at 3, DM-440 (1997) at 7. A “core function” is a duty that has been expressly
assigned to a particular office by the constitution or statutes. See Agan, 940 S.W.2d at 80-82;
accord Tex. Att’y Gen. Op. No. JC-Q176 (2000) at 1.
Agan is helpful in analyzing the issue you raise. In Agan the court considered whether the
Titus County Commissioners Court “may divest the County Treasurer of payroll preparation
responsibilities and transfer those responsibilities to the County Auditor.” Agun, 940 S.W.2d at 78.
Specifically, the Titus County Commissioners Court had transferred from the treasurer’s office to
the auditor’s office the following duties:
(1) collecting timesheets from all county departments, entering
timesheet data into the county computer system to generate payroll
deductions for FIT, FICA, Medicare, insurance; retirement, and child
support payments; (2) making FIT deposits with bank; (3) making
child support deposits with appropriate offices; (4) depositing payroll
funds; (5) paying insurance premiums; (6) preparing insurance
claims; (7) wiring payments to third party administrators; (8)
answering questions about insurance claims or payments; (9)
The Honorable Rex Emerson - Page 3 (GA-0503)
preparing and transmitting W-2’s and 1099’s; and (10) preparing
payroll checks.
Id. at 79. The court suggests that the transferred duties are of two types: payroll preparation duties
as typified by the duties numbered (l), (6), (8), (9), and (10) and the disbursement of county funds
as typified by the duties numbered (2), (3), (4), (5), and (7). See id. at 81-82.
After outlining the commissioners court’s jurisdiction, the Agun court examined the
treasurer’s core duties or functions. See id. at 80. Article XVI, section 44(a) of the Texas
Constitution, which establishes the county treasurer’s office, gives the Legislature the responsibility
to prescribe the treasurer’s duties. See id.; see also TEX. CONST. art. XVI, 5 44(a). Under chapter
113 ofthe Local Government Code, wherein the Legislature established the county treasurer’s duties,
the county treasurer is the “chief custodian of county funds.” Agun, 940 S.W.2d at 80 (quoting TEx.
LOC. GOV’T CODE ANN. 5 113.001). The court lists the treasurer’s core functions, derived directly
from chapter 113 :
. The treasurer is required to keep county funds “in a designated
depository and account for all money belonging to the
county.” Id. (quoting TEX. Lot. GOV’T CODEANN. 3 113.001).
. The county treasurer must “keep an account of’ all money
received, all expenditures of county funds, and all debts owed
by the county. Id. (quoting TEX. Lot. GOV’T CODE ANN. 5
113.002).
. The treasurer must “keep accurate, detailed accounts of all the
transactions of the treasurer’s office.” Id. (quoting Tkx. LOC.
GOV’T CODE ANN. Y$113.002).
. The treasurer “shall receive all money belonging to the county.”
Id. (quoting TEX. Lot. GOV’T CODE ANN. 5 113.003).
. The treasurer must disburse county money and “pay and apply
the money as required by law and as the commissioners court
may require ur direct, not inconsistent with law.” Id. (quoting
TEX. Lot. GOV’T CODE ANN. § 113.041(a)).
As Agan makes clear, the commissioners court cannot take these core functions from the county
treasurer. Id. On the other hand, the court recognized that the law does not expressly assign certain
functions that .a county may find necessary to perform. See id. at 8 1. In such a case, the county
commissioners court has, within its legislative powers, “broad discretion” in assigning the function
to an appropriate county official. Id.
The Agan court found that neither the Texas Constitution nor statutes have specifically
designated the county office that is to perform payroll preparation duties. Id. Because payroll
preparation responsibilities have not been assigned by law, according to Agan, “the Commissioners
The Honorable Rex Emerson - Page 4 (GA-0503)
Court acting in its legislative capacity may delegate the responsibilities to an appropriate county
official.” Id. And the court found that the county auditor is an “appropriate county official” to
perform payroll preparation duties because the auditor has statutory authority to perform the clerical
functions associated with those duties. Id. On the other hand, the Agun court determined that those
duties that involve disbursing county funds are core functions ofthe county treasurer that the county
commissioners court may not reassign. See id. at 82.
You suggest that Agan does not apply here because the county treasurer is an elected official,
as opposed to the appointed county auditor to whom the Titus County Commissioners Court had
delegated duties in that case. See Brief attached to Request Letter, supra note 1, at 3-4. Agan does
not suggest, however, that the initial delegation to the county treasurer,~ an elected officer who
wanted to perform the duties, was improper. See generally Agan, 940 S.W.2d at 79-82.
In answer to your question we conclude, consistently withAgan, that a commissioners court
has authority to delegate to an appropriate elected county official duties that are ,not expressly
assigned by the constitution or statutes. See Brief attached to Request Letter, supra note 1, at 1.
And, applying the Agan analysis to determine whether a commissioners court may delegate the
personnel duties described in the 1992 order to the county treasurer, we first find no constitutional
or statutory provisions that expressly delegate such duties to the treasurer. See Kerr County
Commissioners Court, Order No. 21189: Appointment of Barbara Nemec as County Personnel
Officer (Nov. 23,1992), attached to Tinley~Brief, supra note 2. Consequently, none of the personnel
duties at issue are within the treasurer’s core functions. Cf: Agan, 940 S.W.2d at 80 (enumerating
county treasurer’s core functions).
Assuming, therefore, that the duties are not within another county officer’s core
functions-and you do not suggest that they are-the commissioners court may delegate the
functions to the treasurer if the commissioners court finds the treasurer to be an appropriate official.
See id. Whether a particular county officer is an appropriate county official to whom the
commissioners court may delegate certain tasks is a question of fact that the commissioners court
must determine in the first instance. Cf: Tex. Att’y Gen. Op. No. GA-0446 (2006) at 18 (“Questions
of fact are not appropriate to the opinion process.“). The commissioners court’s determination is
subject to judicial review. Cf: TEX. CONST.art. V, 5 8 (giving the district court “general supervisory
control” over the county commissioners court); Bomer v. Ector County Comm ‘rs Court, 676 S.W.2d
662, 665 (Tex. App.-El Paso 1984, writ ref d n.r.e.) (stating that a commissioners court’s action
“is subject to review by the district court in the exercise oP’ its constitutional authority). Although
the commissioners court may delegate unassigned duties to an appropriate county officer such as the
county treasurer, the commissioners court’s authority to require the treasurer to perform delegated
duties is limited to its authority over the budget. Cf: Tex. Att’y Gen. Op. No. GA-0322.(2005) at 2
(“Only through [its] budget power is the commissioners court able to influence the actions of other
elected officials.“).
Further, the commissioners court may not, by assigning noncore functions to a particular
constitutionally established office, restrict or prevent the officer’s ability to perform core functions.
Cf: Vondy v. Comm’rs Court of Uvalde County, 714 S.W.2d 417,422 (Tex. App.-San Antonio
The Honorable Rex Emerson - Page 5 (GA-0503)
1986, writref dn.r.e.) (stating that acommissioners court cannot restrict or abolish aconstitutionally
established oflice by refusing to reasonably compensate the office holder or by preventing the office
holder from performing required duties). It is possible that in particular circumstances a
commissioners court might assign so many noncore duties to an officer without sufficient financial
support that the officer cannot adequately perform the office’s core functions. Whether this has
happened in this or any other case is a question of fact that cannot be resolved in the opinion process.
Cf: Tex. Att’y Gen. Op. No. GA-0446 (2006) at 18 (“Questions of fact are not appropriate to the
opinion process.“).
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SUMMARY’
A commissioners court may delegate duties that are not
assigned by the constitution or statutes to an elected county official
whom the commissioners court determines is appropriate. But the
commissioners court’s authority to require the officer to perform the
delegated duties is limited to its authority over county budgeting.
And the county commissioners court cannot, in delegating noncore
duties to an official, impair the official’s ability to perform the
office’s core duties.
Very truly yours,
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee