JIM MA- August 26, 1988 

ATMRNEY GENERAL 

Honorable Tim Curry 

Criminal District Attorney 

Tarrant County 

200 West Belknap Street 

Fort Worth, Texas 76196 

Opinion No. 8X-947 

Re: Whether a commissioners 

court may require perfo,rmante evaluations of assistant district attorneys not 

covered by civil service, 

and related questions 

(RQ-1198) 

Dear Mr. Curry: 

You ask whether the Tarrant County Commissioners Court 

"may require performance evaluations" whereby salaries of 

assistant district attorneys, secretaries, investigators, 

and other 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, 

42d Leg., ch. 206, 512, at 339 as amended (now repealed and 

codified as sections 111.001-111.007 of the Local Government 

Code), and former article 332a, Acts 1973, 63d Leg., ch. 

127, 5 5, at 275 (now repealed and codified as section 

41.106(a) of the Government Code) to the issue of whether 

the commissioners court, while carrying out its budgetary 

procedures pursuant to article 689a-11, could change the 

amounts of salaries of personnel in the District Attorney's 

office where those employees' salaries had been set by the 

District Attorney pursuant to article 332a, SeCtiOn 5. 

Article 332a, section 5 then provided as follows: 

Salaries of assistant prosecuting 

attorneys, investigators, secretaries and 

other office personnel shall be fixed by the 

prosecuting attorney, subject to the approval 

of the commissioners court. . . . 

p. 4777 
Honorable Tim Curry - Page 2 ml-947) 

Article 689a-11 provided, in pertinent part: 

At the conclusion of the hearing, the 

budget as prepared by the County Judge shall 

be acted upon by the Commissioners~ court. 

The Court shall have authority to make such 

changes in the budget as in their judgment 

the law warrants and the interest of the 

taxpayers demand [sic]. When the budget has 

been finally gpDroved by the Commissioners' 

Court, the budget, as anvroved by the Court 

shall be filed with the Clerk of the County 

Court, and taxes levied only in accordance 

therewith, and no expenditure of the funds of 

the county shall thereafter be made 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 of article 332a the Legislature 

intended to withdraw from the counties' 

budget-making process, and the attendant 

vicissitudes of political controversy, the 

amounts necessary to pay the salaries of the 

prosecuting attorney's employees, which 

amounts should instead be 'fixed' by the 

prosecuting attorney, to be changed by the 

Commissioners Court only to the extent the 

amounts 'fixed' by him are unreasonable or 

unnecessary. 

690 S.W.2d at 935. 

The court reasoned: 

Under the prosecuting attorney's interpretation, his unilateral determination of his 

employees' salaries is not realistically 

subject to the public debate, the politicaladjustment process, the public-interest 

evaluation, the taxpayer-interest consideration, and the mandatory correlation of county 

revenue and expenditure estimates which 

comprise the legislative process contemplated 

by art. 689a-11. Of what use are public 

hearings, public debate, and so forth if the 

amounts 'fixed' by the prosecuting attorney 

are not open to change by the only body 

authorized to raise the revenue to pay them 

p. 4778 
Honorable Tim Curry - Page 3 (JM-947) 

and make the other legislative determinations 

referred to above? If they are not open to 

change, there is no practical reason for them 

to be discussed or subjected to the political 

and legislative process. They are outside 

such process and the result of dictation by a 

single officer of the executive branch -- an 

anomaly in any governmental budget-making 

process. 

Id. at 938. 

The court then reconciled the apparent conflict between 

the provisions 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 in reference to the salaries of the 

prosecuting attorney's employees, except that 

he, and not the County Judge, shall specify 

the amounts to be included in the proposed 

budget submitted to the Commissioners Court, 

that Court having the power to change those 

salaries, as in the case of ordinary county 

employees, before approving and filing the 

budget with the Clerk of the County Court. 

& at 939. 

To the extent to which they are inconsistent with the 

holding of Commissioners Court of Caldwell Countv, we are of 

the opinion that the following attorney general opinions on 

which you rely in your brief are now overruled: H-908 

f-761, indicating that the commissioners court has 

authority only to approve or disapprove 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 or disapprove, the salary of the 

prosecuting attorney's secretary as set by the prosecuting 

attorney: and H-1113 (1978), ruling that the salaries of the 

prosecuting attorneyIs personnel are not subject to the 

general authority of the commissioners court to raise the 

salaries for personnel in the departments of elected county 

officials. 

your request calls into question the construction of 

two current statutes which are virtually identical to the 

statutes treated in Commissioners Court of Caldwell County: 

p. 4779 
Honorable Tim Curry - Page 4 (JW-947) 

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 111 of the Local Government Code, the counterpart 

provisions to the provisions of subchapter A of chapter 111 

for counties with a popul'ation of over 225,000. The 

provisions of subchapter A are derived from former article 

689a-11; they now apply only to counties of less than 

225,000 population. (See the Revisor's Note to section 

111.001 in the Revisor's Report in the proposed Local 

Government Code, Texas Legislative Council, February 1987.) 

It is our opinion that the holding with respect to the 

purpose and effect of article 689a-11 in Commissioners Court 

of Caldwell County -applies to our construction of the 

provisions of chapter 111, subchapter B of the Local 

Government Code, the general provisions for the 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;ll the salaries of 

his office personnel, the commissioners court may not only 

approve or disapprove such salary figures but may also raise 

or lower the salar~ies "fixed" by the District Attorney in 

arriving at its budget. 

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 

be applied. 

Nothing in Commissioners Court of Caldwell Countv 

in other law, cases, or opinions of this office, gue&ioiE 

the authority of the District Attorney to formulate the 

salary proposals according to such criteria as he, within 

his sole discretion, adopts. The commissioners may not 

therefore require that the District Attorney base salary 

proposals on the results of the performance 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 in their budget. 

We believe that the commissioners' authority to make 

the final budgetary determinations regarding salaries 

p. 4780 
Honorable Tim Curry - Page 5 (JR-947) 

necessarily includes the authority to obtain data from the 

District Attorney's office on which to base such determinations. We would note that, according to the information 

you supplied, the performance evaluations in question are to 

be administered by personnel *within the 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 for the 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 

not precluded, in other contexts,. from regulating work 

conditions of or obtaining data on the activities of 

personnel in county offices. Section 157.021, derived from 

former V.T.C.S. articles 2M2h, 3912e-4a, and 3912e-4b, 

provides that a commissioners court in a county "with a 

population of 355,000 or more . . . may adopt and enforce 

uniform rules on the 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 an officer or employee of the 

county must provide the commissioners court with information 

on the use 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 staff members already employed in 

the county. We conclude that those sections have no 

applicability to the issue you present. 

We concede that Renfro 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 a different result from the one we reach. The court 

there held that the commissioners have no right to screen 

applicants or to veto appointments to positions at various 

p. 4791 
Honorable Tim Curry - Page 6 (J&947) 

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 of any 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 is not determinative of the 

issue you present, which relates to the commissioners' 

authority over personnel already in county employment. As 

the court did not reach the issue regarding the gender/ 

ethnicity form, we must regard any indications as to the 

commissioners' lack of authority as mere dicta. 

Therefore, in our opinion, the commissioners may 

require performance evaluations for the purpose of making 

their final budgetary determinations as to the salaries of 

the District Attorney's employees, which determinations are 

solely within 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 

the balances in county funds as of the first day of the 

fiscal year, plus the anticipated revenue for the fiscal 

year as estimated by the county auditor. Local Gov't Code, 

9 111.039(b)). 

SUMMARY 

In arriving at the salary figures to be 

included in the 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 court may require performance evaluations whereby salaries of personnel in the 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 

such personnel by the District Attorney, for 

purposes of proposing such salary figures to 

the commissioners court, be based on such 

performance evaluations. 

p. 4782 
, 

h 

Honorable Tim Curry - Page 7 (JM-947) 

Very truly yo , l-l A& /ttd@ JIM MATTOX 

Attorney General of Texas 

MARYKELLER 

First Assistant Attorney General 

LOU MCCREmY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLRY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

p. 4783