Untitled Texas Attorney General Opinion ( 1959 )

THEA~ORNEY GENERAL
May 5, 1959 ‘~
.,1_
.”
Honorable Jules Damiani, Jr.
District Attorney
Galveston County Courthouse
Galveston, Texas
Opinion No. ~~-614
Rye: Proposed resolution of
the Commissioners'
Court of Galveston Coun-
ty regarding the working
conditions of the Road
and Bridge Employees and
Dear Mr. Damianl: other employee benefits.
You have requested our opinion regarding the validity
of the proposed resolution of the Coyissioners' Court .of
Galveston County. It recites that: the Commissioners'
Court of Galveston County has heretofore'discussed with the
Road and Bridge Employees of the County and their designated
representatives, ways and means for improving work conditions
and other matters, for the Road and Bridge Employees of Gal-
;eston County, . . .' It also provides for setting forth
. . . a policy for the guidance of the Commissioners' Court
and said Road and Bridge Employees."
The proposed resolution consists of twenty-one
Articles which are entitled as follows: Dues Deduction for
Union mployees, Seniority, Hours of Work and Working Sched-
ule, Overtime and Holidays, Pay Days, Assignment of Work,
Sick Leave, Safety, Stewards and Officers, Funeral Allowance,
Jury Service, Bulletin Boards, Benefit Plans, Construction
Work, Discrimination, Protective Clothing, Longevity Pay,
Vacations, Grievance Procedure and Arbitration, Discharge,
Appliaatlon of Provisions Herein.
The County Commissioners' Court is a body exercising
delegated powers for t;hepurpose of carrying out State funo-
tions. Furthermore, . . . It is a settled rule of law in
this State that, where a Commissioners' Court exceeds Its
power, attempts to allow and settle aacounts not legally
chargeable against the county, its act'sare void and may be
revoked at any time, or may be attacked collaterally in a
Honorable Jules Damianl, Jr., page 2 (~~-614)
court of general jurisdiction." LikewiseJ “Commissioners1
courts, having limited jurisdiction, may act only within
the sphere of the powers and duties--express or implied--
conferred upon the; by the Con,stitutlonand statutes of
this State. Howard v. Henderson Count
2d 479, (CXv.App.'1938 error refT ~T%FTE& .Kt,Z*
and wages and the reguiatlon of working con,dltlonshas
traditionally In Texas County government been accomplished
by statute OP by delegation oftlegislative powers to the
Commissioners' Court. However, we find no constitutional
or statutory authorization for a collective bargaining pro-
cedure or for the recognition of ~a union of comity employ-
ees.
Section 18, Article V of the Cons'citutio,n
of Texas
provides that:
I!
. . . The County Commissioners so
chosen, with the County .Judge,as presid-
ing officer, shall compose the County Com-
missioners Court, which shall exercise such
powers and jurisdiction over all county
business, as is conferred by this Constitu-
tution and the laws of the State, or as may
be hereafter prescribed."
Article 2351, Vernon's Annotated Civil Statutes,
provides that the Commissioners' Court shall:
II 6. Exercise general aontrol over
all roads; highways ,,,ferriesand bridges in
their county., . . 0
Attorney General's Opinion O-4266 (1941) held:
(1
. . . the wages or compensation of men
working by the month for the various County
Commissioners should be set or made under
the authority of a resolution or order duly
passed at a meeting of the'Commissioners'
Court and entered upon the minutes of such
meeting."
Attorney General's Opinion V-1151 (1951) held that:
"The Commissioners' Court in a county
operating under the provisions of the op-
tional County Road Law of 1947, (Art. 6716-1,
Honorable Jules Damiani, Jr., Page 3 (~~-614)
V,C.S.) may raise the salaries or wages
of road department employees without the
recommendation and over the protest of
the County Road Engineer."
In -.-~ -- v. Gooch, 184 S.W.2dy481, 484 (Civ.App.
Foreman
lo&$), Writ ref. W.M., the Commissioners' Court duly
adopted an order providing that interest should be paid
on warrants issued to the employees of the road and bridge
department. In holding that a writ of;mandamus should pro-
perly Issue to the county auditor of Jefferson County re- ,
quiring him to countersign such warrants, the court said:
We are of the opinion that
such interest as may accumulate on said
warrants before they are called for pay-
ment is a part of the compensation for
services performed, as much so as a per
diem wages or salary agreed upon,
I,
. . I
"We feel that it will serve no good
purpose to enter into a lengthy discussion
of the constitutional and statutory pro-
visions and the cases cited dealing with
the power of the Commissioners' Court. We
content ourselves by saying that i.t is our
opinion that the Commissioners1 Court had
the authority, under Article 2351 R.C.S.
and Article 5, Section 18 of the state Con-
stitution, to make the contract above re-
ferred to with the employees of the road
and bridge department, and having done so
in advance of the rendition of the servl-
ces by such employees, t&y were authorized
to order the issuance of the interest bear-
ing warrants in questl.on,limited only by
the amount of the current fund at their dis-
posal, which included money In the treasury,
taxes in process of oolleationjdurlng such
t.axyear, and all other revenue'swhich may
be anticipated with reasonable certainty
during such tax year."
Attorney General's Opinion No. O-4140 (1941) con-
sidered the implied powers of a navigation district and
compared the same to the powers of a Commissioners' Court.
Honorable Jules Damlanl, Jr., Page 4 (Ww-614)
We quote from such opinion as follows:
"It Is a well established principle of
,lawthat the county commissIonerat courts
may exercise only such power as expressly
or by necessary Implication (sic) given to
said courts by the Constitution and Statutes.
This prlnolplels SO well established and
there arc'80 many authorities supporting the
same, we deem it unnecessary to cite any of
such authorities. Therefore, we think that
a navigation district Is subject to the rule
that it must be authorized by statute, either
expressly or by lmpllcation, to exercise any
authority or power which it does exercise.
"As stated above, the Harris County Navl-
gation District is a political subdivision of
the State and certainly Its funds are public
funds. Therefore, the several provisions of
the State Constitution limiting the use of
public funds by its subdivisions do, we think,
apply to the Harris County Navigation District.
"The pension system of the City of Dallas,
which had been adopted some years before the
Legislature had authorized city pensions, was
upheld In the case of Byrd vs. City of Dallas,
6 S.W. (2d) 738, and in considering several of
the constitutional provisions mentioned above,
it was held that they had no rclatlonto a con-
tract between a municipal corporation and its
employees, but were Intended to Prevent the
application of public funds to private purposes.
The pension was held not to be a gratuity, but
a part of the aompensation of the employee for
services rendered. Subsequently, in the case
of City of Dallas vs. Trammel, 101 S;W. (2d
1009, the rule as to the pensions were (sic1
reiterated, but It was pointed out that the ,
pensioner has no vested right in future in-
stallments and that the amounts payable may be
increased or diminished.
1,
. . .
"It Is quite common for the State and the
Honorable Jules Damiani, Jr., page 5, (WW-614)
various subdivisions of the State government
to agree to furnish, as part of the compen-
sation of the employee, living quarters, gro-
ceries, automobiles, etc. . . .
11
. . a
"It is our opinion that the medical servi-
ces and hospitalsfasilities furnished employ-
ees of the Navigation District are sustainable
as a part of their earned compensation where
the Board has made general provisions therefor.
In other words, the Navigation District has
authority to agree, as part of the agreed com-
pensation to be paid employees, to furnish
stipulated services for hospitalization, drugs
and medical attention. However, these cannot
be unlimited in amount or kind, and must, there-
fore, be for some reasonable fixed maximum amount."
In Gulf Bitulithic_I-,Co. v. Nueces County, 11 S.W.2d
305, 313 (Com.APP. 19287 the Commis~r~ourt employed
an agent to reconstruct :he county roads after a disasterous
hurricane. The court held:
"The commissioners' court of'Nucces county,
under the power vested in it by law, had the
right to build and construct its publip roads
without letting a contract therefor, If it saw
fit to do so. The power to build such roads
necessarily implied the addi~tlonalpower to em-
ploy such agents as might be reasonably neces-
sary to accomplish such purpose. In fact, there
Is express statutory authority for the employment
of such agents. Article 1580, R.S. 1925. If it
had the power to employ plaintiff in error to
supervise the building of its roads, which cannot
be seriously questioned, it necessarily follows
that it could employ it for such length of time
as was reasonably necessary to complete such
work. . . -"
In Dodson v. Marshall, 118 S.W.2d 621, 624 (Civ.App.
1938) writ dismissed;~&zo Court of Civil Appeals was
concerned with the legality of the renting by the Commls-
sioners f Court of Grayson County of a small alcove in the
courthouse to the operator of a cold drink stand. Justice
Alexander said:
-
Honorable Jules Damlanl, Jr., page 6 (WW-614)
II
. . . It should be noted in this
connection that the contract here under
consideration Is terminable at the will
of the commissioners, and that~the court
has not ,partedwith its control over the
premieeer. . . .
"Of Course, we recognize that If the
commisslonerst court shouldlease for the
purposes Indicated space that was needed
for county offlces'or other purposes or
should grant a lease for such a time as
to unreasonably interfere with the right
of the court to regulate the use of the
courthouse, OP should otherwise materially
Interfere with the use of the courthouse
as a whole Car the purpose for which it is
Intended, said court might thereby exceed
Its jurisdiction or there might be a clear
abuse of discretion, in which event the
district court in the exercise of its su-
pervisory powers would have a right to
. intervene. But so long as there is a
reasonable exercise of the discretion vested
In the commissioners' court in a matter wlth-
In its jurisdiction, that court alone has the
right to determine the policy to be pursued
and the district court has no authority to
Intervene. Schlller v. Duncan, Tex.Clv.App.,
21 S.W.2d 571, pars. 1,2; Kin v. PallsCoun-
ty, Tex.Clv.App., 42 S.W.2d 48 1 pars. 5,6;
Slimp v. Wise County, Tex.Civ.App., 96 S.W.2d
~,Y~;,,;Fs.7-g; Tarrant County v. Shannon,
104 S.W,2d 4, par. 5. The frequently
recur&i biennial elections at which the com-
missioners are required to account to the elec-
torate for their conduct in matters of this kind
furnishes sufficient protection to the public
against ordinary indiscretion not amounting to
a clear abuse thereof by the commissioners' court.
. , ,(1
Attorneg,General's Opinion No. V-110 (1947) held
that a Commissioners' Court did not have authority to
enter into a collective bargaining contract with a labor
union "when such agreement undertakes to limit the Com-
- .
Honorable Jules Damiani, Jr., page 7 (~~-614)
missioners' Court's authority as to the conditions of em-
ployment, working hours, vacttions, and other matters
relating to such employment.
An Increase in compensation cannot be granted to
apply retroaqtlvely, for to do so would be a olear vlola-
tlon of Section 53 of Article III of the Constitution of
Texas See Fmplre Gas and Puel Co. v. State, 121 Tex.
138, 47 S,W.??d2b5 Plercs%?i v. Galvesto6i7?ounty,$31
S.W.2d 27 (Civ.Appf m;'~ ~'
But an employee's service to
the county prior to the effective date of the resolution
does not have to be disregarded. See Byrd,v. City of
Dallas, 118 Tex. 281, 6 S.W. 2d 738.
Thus, in the employment of its road and bridge em-
ployees, the Commissioners' Court has the authority and
duty to make reasonable provision for their compensation,
working times~and working conditions. This is a continuing
duty and the Commissionerst Court can change such provisions
from time to time. Part of such compensation may be in the
form of reasonable "fringe benefits" so long as provision
therefor is made in advance of the services being rendered.
It could provide for wages, weekly pay days, longevity pay,
overtime pay, hours of work, working schedule, work assign-
ments, vacations, holidays,sick leave, time off for per-
forming jury service, time off for attending funerals of
close relatives, safe and sanitary working conditions, ln-
vestigatlon of accidents, protective clothing, and employee-
elected stewards to attend to grievances.
Likewise, the Commissioners' Court can employ agents
for a period that is long enough to get a specific task ac-
complished, but no longer, It has a general power of con-
trol over roads and bridges, and this power cannot be sur-
rendered, delegated or limited by contract or by a resolu-
tion such as the one under consideration. Any attempt to
create vested rights In the road and bridge employees in
derogation of such power would be ultra vires and void.
It is our opinion that those parts of the proposed resolu-
tion in conflict with such general power of control would
be void. In this connection, we invite your further consid-
eration of the 'proposedresolution with particular attention
to the provisions pertaining to seniority, grievance, dls-
charge and arbitration.
It is our opinion that In the absence of specific
statutory authority the Commissioners1 Court could not
provide for the deduction of union dues from the wa es of
union employees. Attorney General's Opinion No. V-887
I -
Honorable Jules Damlani, Jr., page 8 (m-614)
(1948) held In connection with Section 1 of H.B. 420, Acts
of the 50th Legislature, Regular Session, 1947:
"Since the Act , does not contain any
provision authorizlng'the ,oountyauditor to
oollec& and pay premiums therefor from the,
county empioyces,tsalaries, you ape respectful-
:, ly advlscd that In the absenac of suoh authority
it Is the opinion of this Department that the
county auditor cannot collect and pay premiums
on such a group insurance plan under the provls-
ions of said Act."
It is our opinion that the Commlssionerst Court c'ould
allow a labor union to use county bulletin boards with county
officials and the general public but such use could not be to
the exclusion of others. Attorney General's Opinion V-301
(1947) held:
"A Commissioners Court may allot additional
offices to the county clerk, if needed, for
furnishing space to the general public to in-
spect and copy records, but may not grant space
In the county courthouse to an abstract company
for an office in which to conduct its business
to the exclusion of all others."
Section 4 of Article 5154(c), V.A.C.S., provides that:
1, no person shall be denied public em-
ployment by reason of membership or non-member-
ship In a labor organization."
Section 2 of Article 5207(a), V.A.C.S., provides that:
llNoperson shall be denied employment on
account of membership or non-membership in a
labor union."
Therefore, It Is our opinion that it would be proper
for the Commissioners' Court to resolve that persons shall
not be discriminated against, discharged or harassed because
of such membership or non-membership.
Article 5159(a), V.A.C.S., provjdes:
"Section 1. Not less than the general pre-
vailing rate of per diem wages for work of a
- *
Honorable Jules Damlani, Jr., page 9 (WW-614)
similar crharacterlnthe locality In which
the work is performed, and not less than
tha general prevailing rate of per diem
wages for legal holiday and overtime work,
shall~be paid to all laborers,'workmen and
mechanics employed by or on behalf of the
State of Texas,,or by or on behalf of any
co,unty,c$,tyand county, city, town, dis-
trict or other politlaal subdivision,of the
Stat@, engaged In the construction of public
works, exclusive of maintenance, . . .
"Sec.'2. The public body awarding any
contract for public work . . . shall ascertain
the general prevailing rate of per diem wages
in the locality .,. . for each craft or type
of workman . also the prevailing rate for
legal holiday'and overtime work, . . ."
In Southern Prison Co. v. Reynolds, 110 S.W.2d 606
(Clv.App.)1937,t stated:
"Since the power and duty of determining
the prevailing per diem wage rate for the
work on this contract was vested in the Com-
missioners1 Court, it was not authorized to
ignore such power and duty in its discretion."
It Is our opinion, therefore, that the Commissioners'
Court would be obligated to observe this duty at all times.
Attorney General's Opinion No. O-7011 (1946) was con-
cerned with the question of whether or not a county-district
clerk could operate in his county office an abstract firm
and use county help, equipment and utilities in the operation
of said firm. The question was answered in the negative in
the following language:
"We know of no authority for the Com-
mlssioners~ Court to expend county funds
for office equipment and supplies to be
used for purposes other than 'county pur-
poses.' Moreover, we know of no authority
for a county officer to use fees of office
to pay help used by said officer for a
purpose other than that of carrying out
the duties and functions of the office.
P ,
.*
t
6
10 (~~-614)
~, Honorable Jules‘Damiani,~J,r..,,.page
Ther,efore,lt~isour opinion that tending to union
business and furnishingthe union with six copies of
quarterly overtime reports would'not be among the duties
andfunctions of the road and bridge employees 'and the
commissioners, ,respectipely. ~
As stated above, we find no authorization,for a
collective bargaining proaedure or for the recognition of
a union a8 the bargaining agent for County employees.
We are-attaching oonies of'the various earlier opln-
Ions referred to her&. -
SUMMARY
i
A Commissioners' Court has the power
to make reasonable provision for the
compensation (Including "fringe bene-
fits"), working times and working
conditions of-the road and bridge em-
ployees, provided this ls$done before.
the services are rendered. A Cot&nis-
aboners' Court cannot ~llmlt its power
: ., to'provl,aefor, or change, these mat-
ters,at.~anytime, It cannot pay,a
portion of the wages of road and bridge .I'
employees to a labor unionwithout stat-
utory authorization> an8 It cannot use I
county help to perform services for a
labor union.! It can allow a labor urilon
:. and others to make reasoqable,use of,
county bulle)tn boards. U,must provides
.r; for,the paymeRt of the prevailing wage
by,a,ountycontractors. It can provide
that road and brAage employees shall,not
be discrl lnatedagainst because of union
ornon-u r-i&o
n member&!ip.'! ,.
.$
,c.
Yours ve&truly,
.i
,WILL WT&S@N ,<
Attopef G;neral of Texas
/It
- ‘Jay Howell.
Assistant
JH.:rm
Honorable Jules Damlani, Jr., page
APPROVED:
OPINION COMMITTEE
Qeo. P. Blackburn, Chairman
Milton Richardson
Jack Goodman
W. R. Hemphill
C. Dean Davis
REVIEWED FOR THE ATTORNEY GENERAL
BY: W. V. Geppert