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 set working hours and 

holidays for road employees in a county that has 

ex officio road commissioners (RQ-1710) 

Dear Mr. Davis: 

You ask whether the commissioners court of Castro 

County is authorized to establish working hours and holidays 

for road employees in a county that has ex officio road 

commissioners. 

You furnish us with a copy of the personnel policy 

adopted by the commissioners court in 1983. The policy 

adopted by the court applies "to all employees of Castro 

County," and provides the following work schedule: 

1. The normal work week shall consist of 

40 hours: eight hours per day, Monday through 

Friday. 

2. The responsible elected official will 

determine the reporting time and leaving time 

for the employees so as 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 a policy that the county would avoid overtime 

whenever possible and use compensatory time when feasible. 

See Attorney General Opinion JM-733 (1987). Additional 

1. See Garcia v. San Antonio Metro. Transit Auth., 469 

U.S. 528 (1985). 

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Honorable Jimmy F. Davis - Page 2 (JM-1070) 

information furnished by you reflects that the commissioners 

court on January 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 a question has 

arisen concerning the authority of the commissioners court 

to set the "normal work week" for road employees. 

Section 3.001(a) provides: 

(a) In all counties [operating under 

sections 3.001-3.0041 the members 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 

in their hands by the court. They shall 

superintend the laying out of new roads, the 

making or changing of roads, and the building 

of bridges under rules adooted bv the court. 

(Emphasis added.) 

Additional authority granted a member 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 for positions in 

the commissioner's precinct paid from the 

county road and bridge funds. Each ex 

officio road commissioner may discharge any 

county employee working in the commissioner's 

precinct if the employee is paid from county 

road and bridge funds. Each ex officio road 

commissioner also has the duties of a supervisor of public roads as provided by Section 

2.009 of this Act. 

Section 2.009 authorizes a commissioner serving as an 

ex officio road commissioner to supervise the public roads 

in his respective precinct. The commissioner shall report 

to each regular term of the commissioners court the condition of the roads and bridges in his precinct, the amount of 

money in the 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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Honorable Jimmy F. Davis - Page 3 (JM-1070) 

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 

as may be hereafter prescribed." In the exercise of power 

conferred upon the commissioners court, the court has 

implied authority to exercise a broad discretion to accomplish the purposes intended. Cosbv v. Countv Commissioners 

of Randall 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 of article 6702-l provides in pertinent 

part that: 

(a) The commissioners court shall: 

(1) order that public roads be laid out, 

opened, discontinued, or altered when 

necessary 

. . . . [and1 

(b) The commissioners court may: 

(1) make and enforce all reasonable and 

necessary rules and orders for the construction and maintenance of public roads except 

as prohibited by law; 

(2) hire the labor and purchase the 

machinery and equipment needed to construct 

and maintain public roads. 

In Brooks, Countv and Special District Law, 36 Tex. 

Pratt. 5 40.7, 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 not by 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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Honorable Jimmy F. Davis - Page 4 (JM-1070) 

and materials, and the employment of personnel are consummated by actions of the commissioners court acting as a body. In practice, 

however, individual commissioners have substantial influence over contracts awarded, 

personnel hired, and the purchase 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 for a 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 a body and is an 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 in his precinct and keeping himself 

informed as to road conditions, he generally 

has little further authority. 

-The commissioners court sets the amount of compensation 

for county and precinct employees paid wholly from county 

funds. Local Gov't Code g 152.011 (formerly V.T.C.S. art. 

3912k, § 1). In Attorney General Opinion MW-438 (1982) it 

was concluded that sick leave benefits, vacation entitlement 

and paid holidays for county and precinct employees 

constitute a form of compensation (under then article 3912k, 

V.T.C.S.) and that the determination of same is within the 

sole province of the commissioners court. 

In Attorney General Opinion JM-182 (1984) it was concluded that the commissioners court is not authorized to 

establish working hours for elected county officials. In 

that opinion it was stated that there is no general state 

law which 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 the working hours for road employees, we believe 

the control granted the commissioners court in the matters 

of hiring road employees, setting compensation, determining 

sick leave, vacation entitlement and paid holidays for all 

county and precinct employees necessarily gives the commissioners court implied authority to establish working hours 

and holidays for road employees. 

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Honorable Jimmy F. Davis - Page 5 (JM-1070) 

SUMMARY 

The commissioners court is authorized to 

determine the working hours and holidays 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. 

dzyh 

MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

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