### THEA~ORNEY GENERAL

May5, 1959 ‘~

.,1_ .”
Honorable Jules Damiani, Jr. District Attorney Galveston County Courthouse Galveston, Texas OpinionNo. 

### ~~-614 Rye : Proposedresolution of the Commissioners' Court of Galveston County regarding the working conditions of the Road and Bridge Employees and other employeebenefits. Dear Mr. Damianl:

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 Countyhas heretofore'discussedwith the Road and Bridge Employees of the County and their designated representatives,ways and means for improvingwork conditions and othermatters, 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 Articleswhich are entitled as follows: Dues Deduction for Union mployees, Seniority, Hours of Work and Working Schedule, 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, ProtectiveClothing, Longevity Pay, Vacations, Grievance Procedureand Arbitration,Discharge, Appliaatlonof ProvisionsHerein.

The County Commissioners'Court is a body exercising delegatedpowers for t;he purpose of carrying out State funotions. 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's are void and may be revoked at any time, or may be attacked collaterally in aHonorable Jules Damianl, Jr., page 2 

### (~~-614)

court of general jurisdiction." Likewise “Commissioners1 J courts,having limited jurisdiction,may act only within the sphere of the powers and duties--expressor implied-- conferredupon the; by the Con,stitutlon and 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,dltlons has traditionally In Texas County governmentbeen accomplished by statute OP by delegation oftlegislativepowersto the Commissioners'Court. However,we find no constitutional or statutoryauthorization for a collectivebargainingprocedure or for the recognition of~aunion of comity employees. Section 18, ArticleV of the Cons'citutio,n of Texas provides that:

I!

. . . The County Commissioners so chosen,with the County .Judge, as presiding officer, shall compose the County Commissioners Court,which shall exercise such powers and jurisdictionover all county business, as is conferredby this Constitutution 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,,,ferries and bridges in their county.,

. . 0 Attorney General's Opinion O-4266 (1941)held: (1

. . . the wages or compensation of men working by themonth for the various County Commissioners shouldbe 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 OpinionV-1151 (1951)held that:
"The Commissioners'Court in a county operatingunder the provisions of the optional CountyRoad 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 employeeswithout the recommendationand over the protest of the County Road Engineer."

In Foreman v. Gooch, 

### 184 S.W.2dy481, 484 (Civ.App. -.-~ -- 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 shouldproperly 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 payment is a part of the compensation for servicesperformed, 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 lengthydiscussion of the constitutionaland statutoryprovisions and the cases cited dealingwith the power of the Commissioners'Court. We content ourselvesby saying that i.t is our opinion that the Commissioners1Courthad the authority,under Article 

### 2351R.C.S. and Article 

### 5, Section 

### 18 of the state Constitution,to make the contract above referred to with the employees of the road and bridge department, and having done so in advance of the rendition of the servlces by such employees, t&y were authorized to order the issuance of the interestbearingwarrants in questl.on, limited only by the amount of the current fund at their disposal, which includedmoney In the treasury, taxes in process of oolleationjdurlngsuch t.ax year, and all other revenue's which may be anticipatedwith reasonable certainty during such tax year." Attorney General's OpinionNo. O-4140 (1941) considered the impliedpowers 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 establishedprinciple of ,lawthat the county commissIoneratcourts may exercise only suchpower as expressly or by necessary Implication (sic)given to said courtsby the Constitutionand Statutes. This prlnolplels SO well established and there arc'80many 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 authorizedby statute, either expressly or by lmpllcation,to exercise any authority or power which it does exercise.

"As stated above, the Harris County Navlgation District is a political subdivisionof the State and certainly Its funds are public funds. Therefore, the severalprovisions of the State Constitution limiting the use of public funds by its subdivisionsdo,we think, apply to the Harris County Navigation District.
"Thepension system of the City of Dallas, which had been adopted some years before the Legislaturehad 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 constitutionalprovisionsmentioned above, it was held that they had no rclatlonto a contract between a municipal corporationand its employees,but were Intended to Prevent the application of public funds to private purposes. The pensionwas 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 pensionswere (sic1 reiterated,but It was pointed out that the , pensioner has no vested right in future installmentsand that the amountspayablemay be increased or diminished. 1,

. . . "It Is quite common for the State and theHonorable Jules Damiani, Jr., page 5, (WW-614)

various subdivisionsof the State government to agree to furnish, as part of the compensation of the employee, living quarters, groceries, automobiles, etc.

. . . 11

. . a
"It is our opinion that the medical services and hospitals

fasilities furnished employees of the Navigation District are sustainable as a part of their earned compensationwhere the Board has made general provisions therefor. In otherwords, the Navigation Districthas authorityto agree, as part of the agreed compensation 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, therefore, be for some reasonable fixedmaximum amount."
In Gulf Bitulithic Co. v. Nueces County, 11 S.W.2d 305, 313 (Com.APP. 19287 _I-, the Commis~r~ourt employed an agent to reconstruct :he county roads after a disasterous hurricane. The courtheld:

"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~tlonal power to employ such agents as might be reasonablynecessary to accomplish such purpose. In fact, there Is express statutoryauthority for the employment of such agents. Article 1580, R.S. 1925. If it had the power to employ plaintiff in error to supervisethe building of its roads,which cannot be seriously questioned, it necessarily follows that it could employ it for such length of time as was reasonablynecessary to complete such work.

. . -"
In Dodsonv. Marshall, 118 S.W. 2d 621, 624 (Civ.App. 1938) writ dismissed;~&zo Court of Civil Appealswas concernedwith the legality of the rentingby the CommlssionersfCourt 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 shouldbe noted in this connection that the contracthere under consideration Is terminableat the will of the commissioners,and that~ the court has not ,parted

with 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 otherpurposes or should grant a lease for such a time as to unreasonably interferewith the right of the court to regulate the use of the courthouse,

### OP should otherwisematerially Interferewith the use of the courthouse as a whole Car the purpose for which it is Intended, said courtmight thereby exceed Its jurisdictionor theremight be a clear abuse of discretion, in which event the district court in the exercise of its supervisory powers would have a right to intervene. But so long as there is a reasonable exercise of the discretionvested In the commissioners'court in a matter wlthIn its jurisdiction,that court alone has the right to determine the policy to be pursued and the district courthas no authority to Intervene. Schlllerv. Duncan, Tex.Clv.App., 21 S.W.2d 571, pars. 1,2; Kin ty, Tex.Clv.App., 42 S.W.2d 4 1 pars. 5,6; 

### 8 v. PallsCounSlimp v. Wise County, Tex.Civ.App., 96 S.W.2d ~,Y~;,,;Fs.

7-g; Tarrant Countyv. Shannon, 104 S.W,2d 4, par. 5. The frequently recur&i biennial elections at which the commissioners are required to account to the electorate for their conduct inmatters of this kind furnishes sufficientprotection to the public against ordinary indiscretionnot amounting to a clear abuse thereof by the commissioners'court. (1

. , , Attorneg,General'sOpinionNo. V-110 (1947)held that a Commissioners'Courtdid not have authority to enter into a collectivebargaining contractwith 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 employment,working hours, vacttions, and othermatters relating to such employment.

An Increase in compensation cannotbe granted to apply retroaqtlvely, for to do sowould be a olear vlolatlon of Section 53 of Article III of the Constitutionof Texas See Fmplre Gas and Puel Co. v. State, 121 Tex. 138, 47 S,W.??d

2b5 Plercs%?iv. Galvesto6i7?ounty, $31 S.W.2d 27 (Civ.Appfm;'~ ~' 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. Dallas, 118 Tex. 281, 6 S.W. 2d 738. City of

Thus, in the employment of its road and bridge employees, the Commissioners'Courthas the authority and duty to make reasonableprovision for their compensation, working times~

and working conditions. This is a continuing duty and the Commissionerst Court can change suchprovisions from time to time. Part of such compensationmay be in the form of reasonable "fringebenefits" so long as provision therefor ismade in advance of the servicesbeing rendered. It could provide for wages, weekly pay days, longevitypay, overtimepay, hours of work, working schedule,work assignments, vacations,holidays,sick leave, time off for performing jury service, time off for attending funerals of close relatives, safe and sanitaryworking conditions, lnvestigatlon of accidents,protective clothing, and employeeelected stewards to attend to grievances.

Likewise, the Commissioners'Court can employ agents for a period that is long enough to get a specific task accomplished,but no longer, It has a general power of control over roads and bridges, and this power cannotbe surrendered, delegated or limitedby contract or by a resolution such as the one under consideration. Any attempt to createvested rights In the road and bridge employees in derogation of suchpower would be ultra vires and void. It is our opinion that those parts of the proposed resolution in conflictwith such general power of controlwould be void. In this connection,we invite your further consideration of the 'proposed resolutionwith particular attention to the provisionspertaining to seniority,grievance, dlscharge and arbitration.

It is our opinion that In the absence of specific statutory authority the Commissioners1Court could not provide for the deduction of union dues from the wa es of union employees. Attorney General's OpinionNo. V-887I -

Honorable Jules Damlani, Jr., page 8 (m-614)

(1948)held In connectionwith Section 1 of H.B. 420, Acts of the 50th Legislature,Regular Session, 1947:

"Sincethe Act , does not contain any provision authorizlng'the,oountyauditor to oollec& and pay premiums therefor from the, county empioyces,t salaries,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 insuranceplan under the provlsions of said Act."
It is our opinion that the CommlssionerstCourt c'ould allow a labor union to use county bulletin boards with county officials and the general public but suchuse could not be to the exclusion of others. (1947)held: Attorney General's OpinionV-301

"A CommissionersCourt

### may allot additional offices to the county clerk, if needed, for furnishing space to the general public to inspect 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, ploymentbyno person shallbe deniedpublic emreason of membership or non-membership In a labor organization." Section 2 of Article 5207(a),V.A.C.S.,provides that:
llNo person shallbe 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 discriminatedagainst, discharged or harassed because of suchmembership or non-membership.

Article 5159(a),V.A.C.S., provjdes: "Section 1. Not less than the general prevailing rate of per diem wages for work of a- *

Honorable Jules Damlani, Jr., page 9 (WW-614)

similar crharacter lnthe locality In which the work is performed, and not less than tha general prevailing rate of per diem wages for legalholiday and overtimework, shall~ be paid to all laborers,'workmenand mechanics employedby or on behalf of the State of Texas,,orby or on behalf of any co,unty,

c$,ty and county, city, town, district or other politlaal subdivision, of the Stat@, engaged In the constructionof public works, exclusive ofmaintenance,

. . . "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 overtimework,

. . ."
In Southern Prison Co. v. Reynolds, 110 S.W.2d 606 (Clv.App.)

1937,t stated: "Since the power and duty of determining the prevailingper diem wage rate for the work on this contractwas vested in the Commissioners1 Court, it was not authorized to ignore suchpower and duty in its discretion."
It Is our opinion, therefore, that the Commissioners' Courtwould be obligated to observe this duty at all times.

Attorney General's OpinionNo. O-7011 (1946)was concerned 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 questionwas answered in the negative in the following language:

"We know of no authority for the Commlssioners~ Court to expend county funds for office equipment and suppliesto be used for purposes other than 'countypurposes.' 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
~,Honorable Jules‘Damiani,~ J,r..,,.page

10 (~~-614)

Ther,efore,

lt~isour opinion that tending to union business and furnishingthe union with six copies of quarterly overtime reportswould'not be among the duties andfunctions of the road and bridge employees 'andthe commissioners, ,respectipely. ~

As stated above,we find no authorization, for a collectivebargaining proaedure or for the recognition of 

### a union a8 the bargaining agent for County employees.

We are-attachingoonies of'the various earlier oplnIons referred to her&. -

: .,

I



### .r;

JH.:rm :. SUMMARY i A Commissioners'Courthas the power to make reasonableprovision for the compensation (Including "fringebenefits"),working times and working conditions of-the road and bridge employees, provided this ls$donebefore. the services are rendered. A Cot&nisaboners' Court cannot~llmltits power to'provl,ae

for, or change, thesematters,at.~any

time, It cannotpay, a portion of the wages of road and bridge .I' employees to a labor unionwithout statutory authorization>an8 It cannot use countyhelp to perform services for a labor union.! It can allow a labor urilon and others to make reasoqable,useof, county bulle)t

n boards. R U,must provides for,the payme t of the prevailingwage by,a,ounty

contractors. 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 ,WILLWT&S@N ,< Attopef G;neral of Texas /It

- ‘JayHowell. AssistantHonorable 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