Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
JIM MATTOX De'cember30, 1985
Attorney General
Supreme Court Building Honorable Mike Driscoll Opinion No. JM-410
P. 0. Box 12546 Harris County Attorney
Austin, TX. 76711. 2346 1001 Preston, Suite 634 Re: Whether employees of the Rarris
5121475-2501 77002 County Pre-trial Release Agency are
Houston, Texas
Telex 9101674.1367
Telecopier 51214750266
state or county employees
Dear Mr. Driscoll:
714 Jackson, Suite 700
Dallas, TX. 75202.4506
You have requested our opinion with regard to two matters related
2141742-6844
to persons employc:dby the Harris County pre-trial bond board, which
the county denominates the Harris County Pre-trial Release Agency
4624 Alberta Ave., Suite 160 [hereinafter the "Agency"]. The first issue is whether those
El Paso, TX. 799052793 individuals are s1:ateor county employees. If these individuals are
9151533.3464 found to be count:7employees, the next issue is what is the rate of
pay under the Fail:Labor Standards Act should be for an applicant who
1001 Texas, Suite 700
is an employee of another county agency and a part-time employee for
Houston, TX. 77002-3111 the Agency. We first conclude, for the reasons below, that under the
7132255866 circumstances currently. those individuals are employees of Harris
county. We also :onclude that the county is required to comply with
section 207(a)(l) of the Fair Labor Standards Act of 1938, as amended,
606 Broadway, Suite 312
Lubbock, TX. 79401.3479
when computing the rate of pay of a county employee regardless of
8061747.5239 whether he is employed by two separate county departments or agencies.
In regard to the first issue, there is no authority within the
4309 N. Tenth, Suite B
state of Texas to establish a personal bond office except as provided
McAllen. TX. 76501-1665
5121662.4547
by the state legislature. In 1973, the Sixty-third Legislature
enacted article 2:~72p-2,V.T.C.S., authorizing the establishment of a
personal bond office in two circumstances. An office may be
200 Main Plaza, Suite 400 established by the,commissioners court or by a judicial district. The
San Antonio, TX. 76205.2797
provision provides the following in part:
51212254191
SecMon 1. Any counte, or any judicial
An Equal OpportunitYl district. with jurisdiction in more than one
Affirmative Action Employer county, with the approval of the commissioners
court of each county in the district, 9
establith a personal bond office to gather and
review :.nformatioaabout an accused that may have
a bearing on whether he will comply with the
conditic'ns of a personal bond and report its
findings, to the court before which the case is
pending.
p. 1877
. .
Honorable Mike Driscoll - Page 2 (JM-410)
Sec. 2. (a) The commissioners court of a
county that establishes the office, or the
district and county judges of a judicial district
that establishes the office, may employ a director
of the office.
(b) The dir,actor may employ the staff
authorized by the cosmrissioners court of the
county or the cokssioners courts of each county
in the judicial district if the judicial district
includes more than one county. (Emphasis added).
V.T.C.S. art. 2372p-2. 51. The purpose of the personal bond office is
to provide the district judge with information to determine the
eligibility of accused persons for release on recognizance. -See
V.T.C.S. art. 2372p-2, $1.
In our opinion, the intention of the legislature in enacting
section.2 was that the co!msissionerscourt would be the employer of
the director and staff oi! the personal bond office, if the county
established the office. See V.T.C.S. art. 2372p-2, 62(a). Even in
where a judicial district is authorized to
the second circumstance, ---
establish an office, the commissioners court must give its approval of
the staff before they may 'be employed by the director. Id. #Z(b).
Rowever, the district and county judges of the judicial district that
established the office, are authorized to employ the director of the
office. -Id. 12(a).
The Harris County ctnnmissioners court established a county
personal bond office and employed s director and staff pursuant to
article 2372p-2, V.T.C.S. In compliance with the legislative intent,
we conclude that the staff '--those persons employed by the Pre-trial
Release Agency of Earris County -- are employees of the county.
In 1975, a reorganizaeion of the office was ordered by a federal
district judge in an effort to reduce the Rarris County jail
population. It specified chat the
[olperational control of the Harris county
Pre-trial Release,Agency is hereby transferred to
the state District Judges of Harris County, Texas.
The Commissioners Court retains budgetary approval
of the agency.
Albert1 v. Sheriff of Raqis County, Texas, 406 F. Supp. 649, 674
7S.D. Tex. 1975). Your letter indicated that the Agency is funded by
Harris County as a part of the Adult Probation Department's budget and
the Agency's employees hav'e been subject to the county's personnel
regulations. You argue that this judicial reorganization of the
p. 1878
Honorable Mike Driscoll - Page 3 (~~-410)
Agency has caused the Agency's employees to come under the control and
supervision of the state district judges and, thus, like the employees
of the Adult Probation Department, they are state employees. See Code
Grim. Pro. art. 42.12, 110; Clark v. Tarrant County, 608 F. Sz. 209
(N.D. T=. 1985). We disagree with this analysis. First. the sole
intent behind article 42.:.:!of the Code of Criminal Procedure was to
place the Adult Probaticn Department totally within the state
judiciary. See Clark v. Tarrant County, supra, at 211. Secondly, the
analysis is contrary to the organizational structure contemplated by
the legislature in article 2372p-2, V.T.C.S.
As indicated above, the purpose of a personal bond office
organized pursuant to article 2372p-2 is to gather and review
information that may have a bearing on an accused as to whether that
individual will comply wtth the conditions of personal bond. See
V.T.C.S. art. 2372p-2, 51. This information is to be reported to the
court. Id. This is also the only relationship that the legislature
intended to exist between the district judges and the Agency when the
county commissioners have established the office. The judicial order
did not alter this limit~?cl relationship. We are not authorized to
review nor alter any judicial order in the opinion process; but, we
can conclude that the crder does not create a conflict in the
relationship between the Agency employees and the commissioners court
as intended by the legislature. See Attorney General Opinion JR-287
(1984). The order does not circumvent the commissioners court'8
employing authority as provided for in section 2 of article 2372p-2.
Therefore, these individuals are employees of the county.
In regard to the sr!c.ondquestion, you inform us that Rarris
County is inthe process of:evaluating those employees subject to the
minimum wage and overtime provisions of the Fair Labor Standards Act
of 1938, as amended, in l:&:htof a recent United States Sunreme Court
decision. 29 U.S.C. §§2~~~(1982) et seq.; see also Garcia v. San
Antonio Metropolitan Transit AuthoriT - U.S. 105 s.ct. 1005
(1985). You also inform% that an employee ofthe Harris County
Juvenile Probation Department has applied for part-time employment
with the Agency. At the present time, the applicant, a county
employee. works at leasi: forty hours per week for the Juvenile
Probation Department. Yor. ask what the proper rate of pay after his
forty-hour work week with the Juvenile Probation Department would be
if the applicant is employed by the Agency.
The applicant is inc,tudedwithin the Fair Labor Standards Act's
definition of a covered employee. See 29 U.S.C. §203(e)(2)(C)(1982)
(individual employed by a political subdivision of a state). The act
makes no exception for dir;trictdivisions of a political subdivision.
Section 207(a)(l) of the act provides in part:
p. 1879
Honorable Mike Driscoll - Page 4 (JM-410)
no employer shaL:L employ any of his employees
. . . for a wo&-week longer than forty hours
unless such emplcmyeereceives compensation for his
employment in excess of the hours above specified
at a rate not let,sthan one and one-half times the
regular rate at zhich he is employed. (Emphasis
added).
29 U.S.C. §207(a)(1)(1982) Since the applicant will at all times be
employed as a county employee within a staff position, we conclude
that the county must comp:iywith section 207(s)(l) in computing his
rate of pay.
SUMMARY
When a county commissioners court establishes a
personal bond of E:Lce pursuant to article 2372p-2,
V.T.C.S., those :.ndividualsemployed by the office
are county employees.
A county is also required to comply with
section 207(a)(l:1of the Fair Labor Standards Act
of 1938, as ameuded, (29 U.S.C. §207(a)(1)(1982)
when computing the rate of pay of a county
employee regardless of whether he is employed by
two separate COUILI:~departments or agencies.
JIM MATTOX
Attorney General of Texas
JACK RIGRTOWRR
First Assistant Attorney Gl?neral
MARY KELLER
Executive Assistant Attommzy General
ROBERT GRAY
Special Assistant Attorney General
RICX GILPIN
Chairmen, Opinion Committes
Prepared by Tony Guillory
Assistant Attorney General
p. 1880
.