July 10, 1989

Honorable Jimmy F.Davis Opinion No. JM-1070 Castro County District Attorney Castro County Courthouse Re:Whether a commissionDimmitt, Texas 79027-2689 ers court is authorized to setworking hours and holidays for road employees ina county that has ex officio road commissioners (RQ-1710)

Dear Mr. Davis:

You ask whether the commissioners court of Castro County isauthorized to establish working hours andholidays forroad employees in acounty that has ex officio road commissioners.

You furnish uswith a copy of the personnel policy adopted by the commissioners court in 1983. The policy adopted by the court applies "toall employees of Castro County," andprovides the following work schedule:

1. The normal work week shall consist of 40hours: eight hours perday, Monday through Friday.
2. The responsible elected official will determine the reporting time and leaving time for the employees soas to achieve maximum effectiveness of the county.

You advise that since the Fair Labor Standards Act was held applicable to counties,1 the commissioners court in 1986 adopted apolicy that the county would avoid overtime whenever possible and use compensatory time when feasible. SeeAttorney General Opinion JM-733 (1987). Additional

1. See Garcia v. SanAntonio Metro. Transit Auth., 469 U.S. 528 (1985).

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information furnished byyou reflects that the commissioners court onJanuary 12, 1987, and again on January 9, 1989, adopted by resolution the system of organizing the commissioners court for road construction that constitutes members of the court as ex officio road commissioners. V.T.C.S. art. 6702-1, 55 3.001-3.004. you advise that aquestion has arisen concerning the authority of the commissioners court to set the "normal work week" forroad employees.
Section 3.001(a) provides:

(a)In all counties [operating under sections 3.001-3.0041 themembers of the commissioners court are ex officio road commissioners of their respective precincts and under the direction of the commissioners court have charge of the teams, tools, and machinery belonging to the county and placed intheir hands by the court. They shall superintend the laying out ofnew roads, the making or changing of roads, and the building ofbridges under rules adooted bv the court. (Emphasis added.)
Additional authority granted amember of the court serving as an ex officio road commissioner is set forth in section 3.003(a), providing:

(a)Subject to authorization bv the commissioners court, each ex officio road commissioner may employ persons forpositions in the commissioner's precinct paid from the county road and bridge funds. Each ex officio road commissioner may discharge any county employee working inthe commissioner's precinct ifthe employee ispaid from county road andbridge funds. Each ex officio road commissioner also has theduties of a supervisor ofpublic roads asprovided by Section 2.009 of thisAct.
Section 2.009 authorizes a commissioner serving as an ex officio road commissioner to supervise thepublic roads inhis respective precinct. The commissioner shall report to each regular term of the commissioners court the condition of the roads andbridges inhisprecinct, the amount of money inthe hands of overseers subject to being expended on roads, and the name of every overseer who has failed to perform his duty.

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Article V, section 18, of the Texas Constitution provides that the commissioners court "shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or asmay be hereafter prescribed." Inthe exercise of power conferred upon the commissioners court, the court has implied authority to exercise abroad discretion to accomplish thepurposes intended. Cosbvv. Countv Commissioners ofRandall Countv, 712 S.W.2d 246 (Tex.App. - Amarillo 1986,writ ref'd n.r.e.). See aenerallv Attorney General Opinion JM-801 (1987) (nepotism statute prevents ex officio road commissioner from hiring son of another road commissioner).
Section 2.002 ofarticle 6702-lprovides in pertinent part that:
(a)The commissioners court shall:

(1)order thatpublic roads be laid out, opened, discontinued, or altered when necessary

. . . . [and1 (b)The commissioners courtmay: (1)make and enforce all reasonable and necessary rules and orders forthe construction andmaintenance ofpublic roads except asprohibited by law;
(2)hire the labor and purchase the machinery and equipment needed to construct andmaintain public roads.

InBrooks, Countv and Special District Law, 36 Tex. Pratt. 540.7, at 405 (1989),the following comment is made relative to the foregoing provisions of section 2.002:

These provisions essentially mean that the county roads are open, constructed, and maintained by the commissioners court as a whole and notby individual county commissioners. However, county commissioners serving as ex officio road commissioners may employ personnel for their precinct subject to commissioners court approval. [V.T.C.S. art. 6702-1, g 3.003(a).] Otherwise, all road contracts, purchases of road' equipment

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andmaterials, and the employment of personnel are consummated by actions of the commissioners court acting asabody. Inpractice, however, individual commissioners have substantial influence over contracts awarded, personnel hired, and thepurchase of road material. They do not, however, have any authority to legally bind the county for the most part.
The commissioners court can employ personnel, execute contracts, and purchase equipment fora commissioner's precinct over his objection. [Attorney General Opinion V-1424 (1952).] The employment of road personnel and the execution of road contracts must be acted upon by the commissioners court as abody and isan authority that cannot be delegated to another such as the county judge. [Attorney General Opinion V-532 (1948).] In short, even though each county commissioner is responsible for supervising road work inhis precinct and keeping himself informed as to road conditions, he generally has little further authority.
-Thecommissioners court sets the amount of compensation for county and precinct employees paid wholly from county funds. Local Gov't Code g 152.011 (formerlyV.T.C.S. art. 3912k, § 1). InAttorney General Opinion MW-438 (1982) it was concluded that sick leavebenefits, vacation entitlement and paid holidays for county and precinct employees constitute a form of compensation (underthen article 3912k, V.T.C.S.) and that the determination of same iswithin the sole province of the commissioners court.

InAttorney General Opinion JM-182 (1984) itwas concluded that the commissioners court is not authorized to establish working hours forelected county officials. In that opinion itwas stated that there isnogeneral state lawwhich dictates office hours or the work week to be observed by county officials and employees. While there is no express state law authorizing the commissioners court to determine theworking hours for road employees, we believe the control granted the commissioners court inthe matters ofhiring road employees, setting compensation, determining sick leave, vacation entitlement andpaid holidays for all county andprecinct employees necessarily gives the commissioners court implied authority to establish working hours andholidays for road employees.

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SUMMARY
The commissioners court isauthorized to determine theworking hours andholidays for road employees in a county that operates under the ex officio road commissioners system pursuant to section 3.001(a) of article 6702-1,V.T.C.S.

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MATTOX Attorney General of Texas

MARY KELLER FirstAssistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by Tom G.Davis Assistant Attorney General

Pa 5579