JIM MA- August 26, 1988

ATMRNEY GENERAL

Honorable Tim Curry Criminal District Attorney Tarrant County 200West Belknap Street FortWorth, Texas 76196 Opinion No. 8X-947

Re: Whether a commissioners courtmay require perfo,rmante evaluations of assistantdistrict attorneys not covered by civil service, and related questions (RQ-1198)

DearMr. Curry:

You askwhether the Tarrant County Commissioners Court "mayrequire performance evaluations" whereby salaries of assistant district attorneys, secretaries, investigators, andother personnel in the District Attorney's office, are "set," none of the referenced positions being covered by a civil service program.
Commissioners Court of Caldwell Countv v. Criminal District Attornev. Caldwell Countv, 690 S.W.2d 932 (Tex. APP. - Austin 1985, writ ref'd n.r.e.) considered the application of former article 689a-11, V.T.C.S., Acts 1931, 42dLeg., ch. 206, 512,at 339asamended (nowrepealed and codified as sections 111.001-111.007 ofthe Local Government Code), and former article 332a, Acts 1973, 63dLeg., ch. 127, 5 5,at 275 (nowrepealed and codified as section 41.106(a) ofthe Government Code) to the issue of whether the commissioners court, while carrying out its budgetary procedures pursuant toarticle 689a-11, could change the amounts of salaries ofpersonnel inthe District Attorney's office where those employees' salaries had been setby the District Attorney pursuant toarticle 332a, SeCtiOn 5.

Article 332a, section 5thenprovided as follows:

Salaries of assistant prosecuting attorneys, investigators, secretaries and other office personnel shallbe fixedby the prosecuting attorney, subject to the approval ofthe commissioners court. . . .

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Article 689a-11 provided, inpertinent part:

At the conclusion of the hearing, the budget asprepared by the County Judge shall be acted upon by the Commissioners~ court. The Court shallhave authority tomake such changes inthe budget as intheir judgment the law warrants and the interest of the taxpayers demand [sic]. When thebudget has been finally gpDroved by the Commissioners' Court, the budget, as anvroved by the Court shallbe filedwith the Clerk of the County Court, and taxes levied only in accordance therewith, and no expenditure of the funds of the county shall thereafter bemade except in strict compliance with the budget as adonted by the Court. (Emphasis added.)

The District Attorney had argued, the court said, that
by enactment ofarticle 332a the Legislature intended to withdraw from the counties' budget-making process, and the attendant vicissitudes 

### of political controversy, the amounts necessary topay the salaries of the prosecuting attorney's employees, which amounts should instead be 'fixed' by the prosecuting attorney, tobe changed by the Commissioners Court only to the extent the amounts 'fixed' byhim areunreasonable or unnecessary.

690S.W.2d at 935.

The court reasoned:

Under the prosecuting attorney's interpretation, hisunilateral determination of his employees' salaries is not realistically subject to thepublic debate, the politicaladjustment process, the public-interest evaluation, the taxpayer-interest consideration, and themandatory correlation of county revenue and expenditure estimates which comprise the legislative process contemplated by art. 689a-11. Ofwhat use are public hearings, public debate, and so forth if the amounts 'fixed'by theprosecuting attorney
arenot open to change by the only body authorized to raise the revenue topay them

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andmake the other legislative determinations referred to **above?** If they arenot open to change, there isnopractical reason for them tobediscussed or subjected to the political and legislative process. They are outside suchprocess and the result ofdictation by **a** single officer ofthe executive branch --an anomaly in any governmental budget-making process.

Id. at 938.

The court then reconciled the apparent conflict between theprovisions of article 332a, section 5 and article 689a-11, holding as follows:

_

[T]he Legislature intended by the two statutes in question that the ordinary budget-making process of art. 689a-11 be followed inreference tothe salaries of the prosecuting attorney's employees, except that he, andnot the County Judge, shall specify the amounts to be included inthe proposed budget submitted to theCommissioners Court, that Court having the power to change those salaries, as inthe case ofordinary county employees, before approving and filing the budget with the Clerk ofthe County Court.

& at 939.

To the extent towhich they are inconsistent with the holding of Commissioners Court ofCaldwell Countv, we are of the opinion that the following attorney general opinions on which you rely inyour brief arenow overruled: H-908 f-761, indicating that the commissioners court has authority only toapprove ordisapprove the salaries set by the District Attorney for personnel in his office; H-922 (1977),holding similarly that the commissioners court may not set,but only approve ordisapprove, the salary of the prosecuting attorney's secretary as setby the prosecuting attorney: andH-1113 (1978),ruling that the salaries of the prosecuting attorneyIs personnel arenot subject to the general authority of the commissioners court to raise the salaries forpersonnel inthedepartments of elected county officials.

your request calls intoquestion the construction of two current statutes which arevirtually identical to the statutes treated inCommissioners Court ofCaldwell County:

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Section 41.106(a) of the Government Code, which is a codification without any substantive change of article 332a, section 5, suvra, and the provisions of subchapter B, chapter 111of the Local Government Code, the counterpart provisions totheprovisions of subchapter Aof chapter 111 for counties with a popul'ation of over 225,000. The provisions of subchapter A arederived from former article 689a-11; they now apply only to counties of less than 225,000 population. (See theRevisor's Note to section 111.001 in the Revisor's Report in the proposed Local Government Code, Texas Legislative Council, February 1987.)

It isour opinion that theholding with respect to the purpose and effect ofarticle 689a-11 inCommissioners Court ofCaldwell County -applies to our construction of the provisions of chapter 111, subchapter B of the Local Government Code, the general provisions forthe budgetary process which are applicable to Tarrant County.

It is clear, therefore, under the holding of Commissioners Court of Caldwell Countv that while the Tarrant County District Attorney may wfi;llthe salaries of his office personnel, the commissioners court may not only approve ordisapprove such salary figures butmay also raise
or lower the salar~ies"fixed" by the District Attorney in arriving at itsbudget.

In considering the issue you present -- i.e. whether the county commissioners may Veguire" performance evaluations "whereby salaries are set" for personnel in the District Attorney's office, the following guidelines are to beapplied.
Nothing inCommissioners Court of Caldwell Countv inother law, cases, or opinions of this office, gue&ioiE the authority ofthe District Attorney to formulate the salary proposals according to such criteria ashe, within his sole discretion, adopts. The commissioners may not therefore require that the District Attorney base salary proposals on the results oftheperformance evaluations.

On the other hand, since the commissioners may approve, disapprove, modify, or effectively disregard the salary proposals made by the District Attorney, we are of the opinion that the commissioners may use the performance evaluations in determining the salary figures which they will actually adopt intheir budget.

We believe that the commissioners' authority to make the final budgetary determinations regarding salaries

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necessarily includes the authority to obtain data from the District Attorney's office on which tobase such determinations. Wewould note that, according to the information you supplied, theperformance evaluations inquestion are to be administered bypersonnel *withinthe District Attorney's office and that their administration will involve only & minimis intrusion by the commissioners into the day to day operations of the District Attorney's office. We would further note that our ruling here is of course limited to this particular factual situation which you presented in your request.

A consideration of various provisions of the Local Government Code indicates that our conclusion is consistent with the overall statutory scheme forthe operations of county government. Sections 111.005 and 111.036 -- the former applicable to counties of 225,000 population or less and the latter to larger counties --provide that the county budget officer, the county judge in section 111.005, and the county auditor in section 111.036, may require county officers to furnish information necessary for the budget officer's budget preparation. Moreover, other sections of the Local Government Code show that the commissioners are notprecluded, in other contexts,. from regulating work conditions of or obtaining data on the activities of personnel incounty offices. Section 157.021, derived from formerV.T.C.S. articles 2M2h, 3912e-4a, and 3912e-4b, provides that a commissioners court in acounty "with a population of 355,000 ormore . . .may adopt and enforce uniform rules onthe hours of work of department heads, assistants, deputies, and other employees whose compensation is set or aovroved by the court." [Emphasis added]. Section 270.006 provides that anofficer or employee of the countymust provide the commissioners courtwith information
on theuse of equipment in the charge of the employee or officer.

Sections 151.001-151.004, derived from former articles 3902, 3912e, 3912e-13, regulate only the commissioners' power over appointments made by county officers and not the commissioners' power over staffmembers already employed in the county. We conclude that those sections have no applicability to the issueyoupresent.

We concede thatRenfro v. Shronshire 566 S.W.2d 688 (Tex.Civ. App. - Eastland, 1978, writ ref'd n.r.e.), decided seven years before the Caldwell County case, may suggest adifferent result fromthe onewe reach. The court there held that the commissioners have no right to screen applicants or toveto appointments topositions at various

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salary steps made by the county clerk. The court considered, in addition, the commissioners' authority to require that county officials supply a form showing the ethnicity and gender of all employees and indicating any equal opportunity hiring and promoting efforts that should be attempted where the work force is found to be overrepresentative ofany one ethnicity or gender. The court did not reach the latter issue, finding that there was no justiciable controversy presented.. In our opinion, the holding in Renfro with respect to the commissioners' authority over appointments isnot determinative of the issueyou present, which relates to the commissioners' authority over personnel already incounty employment. As the court did not reach the issue regarding the gender/ ethnicity form,we must regard any indications as to the commissioners' lack ofauthority asmere dicta.
Therefore, in our opinion, the commissioners may require performance evaluations forthe purpose of making their finalbudgetary determinations as to the salaries of the District Attorney's employees, which determinations are solelywithin the commissioners* prerogative (so long as they consider them "warranted by the facts and law and required by the interest of ,the taxpayers," and so long as the total amount budgeted -in a fiscal year does not exceed thebalances in county funds as of the first day of the fiscal year, plus the anticipated revenue forthe fiscal year as estimated by the county auditor. Local Gov't Code, 9111.039(b)).

SUMMARY

Inarriving at the salary figures to be included inthe county budget for personnel of the District Attorney's office, the commissioners court of Tarrant County may approve, disapprove or modify the salary figures proposed by the District Attorney. The commissioners courtmay require performance evaluations whereby salaries of personnel inthe District Attorney's office are set for budgetary purposes by the commissioners court. The commissioners court may not require that the fixing of salaries of suchpersonnel by the District Attorney, for purposes ofproposing such salary figures to the commissioners court, bebased on such performance evaluations.

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h Honorable Tim Curry -Page 7 (JM-947)

Very truly yo , 

# l-l/ttd@

A& JIM MATTOX Attorney General ofTexas

MARYKELLER FirstAssistant Attorney General

LOUMCCREmY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLRY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared byWilliam Walker Assistant Attorney General

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