ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

February 2,2005 

The Honorable Ronald D. Hankins 

Somervell County Attorney 

Post Office Box 1335 

Glen Rose, Texas 76043 

Opinion No. GA-0303 

Re: Whether an elected county official may close his 

office on a day declared by the Governor of Texas to 

be an “official day of mourning” (RQ-0267-GA) 

Dear Mr. Hankins: 

You ask whether an elected county official may close his office on a day declared by the 

Governor to be an official day ofmouming. Ifthe official closes his office for this purpose, you ask 

whether the County Auditor may treat the official day ofmourning as a vacation day in compensating 

the official’s employees.’ 

After former President Ronald Reagan died, Governor Rick Perry declared in Executive 

Order RP34 that Friday, June 11, 2004, would be an official day of mourning and that all state 

offices would be closed to allow state employees to attend ceremonies in honor of President 

Reagan’s memory. See Tex. Gov. Exec. Order No. RP34; 29 Tex. Reg. 5985 (2004). While some 

counties ordered their offices closed on June 11, 2004, the Commissioners Court of Somervell 

County did not. See Request Letter, supra note 1, at 1. In Somervell County, however, the Justice 

ofthe Peace of Precinct Two closed his office for the day and so informed his clerk. See id. See also 

TEX. GOV’T CODE ANN. 5 27.056(a) (Vernon 2004) (justice of the peace may designate one or more 

persons to serve as clerks). When the next pay period for county employees arrived, the County 

Auditor for Somervell County charged the clerk a vacation day for June 11, the day on which the 

Justice’s office was closed. 

You ask whether Attorney General Opinion JC-0131 (1999) governs the elected officer’s 

closing of his office in observance of the official day of mourning. Request Letter, supra note 1, 

at 2. You also ask whether the County Auditor of Somervell County is authorized to determine how 

the clerk’s time is to be charged for the day on which the Justice of the Peace closed his office. Id. 

Attorney General Opinion JC-013 1 concluded that an elected or appointed county official 

was authorized to close his office on account ofbadweather, repairs, and the like and that employees 

‘Letter from Honorable Ronald D. Hankins, Somervell County Attorney, to Honorable Greg Abbott, Texas 

Attorney General (Aug. 25, 2004) (on tile with Opinion Committee, also available at http://www.oag.state.tx.us) 

[hereinafter Request Letter]. 
The Honorable Ronald D. Hankins - Page 2 (GA-0303) 

of the office were entitled to compensation for the time they could not work because of an office 

closure. See Tex. Att’y Gen. Op. No. JC-0131 (1999) at 2-3. Even more relevant to your question 

is Attorney General Opinion JC-0239, which considered whether a county officer might close his 

office for reasons not related to “bad weather, repairs, and the like.” Tex. Att’y Gen. Op. NO. 

JC-0239 (2000) at 1. We will review these opinions and the authorities they cite. 

A commissioners court has authority with certain exceptions to “set the amount of the 

compensation, office and travel expenses, and all other allowances for county and precinct officers 

and employees who are paid wholly from county funds.” TEX. LOC. GOV’T CODE ANN. 5 152.011 

(Vernon 1999). Under section 152.011, the court may confer upon county officers and employees 

such benefits as longevity pay, vacation leave, sick leave, and paid holidays. See, e.g., Tex. Att’y 

Gen. Op. Nos. JM-910 (1988) at 4 (vacation and sick leave), MW-438 (1982) at 2 (paid holidays); 

Tex. Att’y Gen. LO-96-007, at 2 (longevity pay). 

However, a commissioners court ordinarily lacks authority to set the office hours of other 

county officials and their employees. See Tex. Att’y Gen. Op. No. JC-0131 (1999) at 1. See also 

City of San Antonio v. City ofBoerne, 111 S.W.3d 22,27-28 (Tex. 2003); Canales Y. Laughlin, 214 

S.W.Zd 451,453 (Tex. 1948) (county commissioners have only the powers expressly conferred by 

the Texas Constitution or statutes or necessarily implied therefrom). The commissioners court may 

not interfere with the powers or duties of independent county officials and their employees. 

Pritchard&Abbott v. McKenna, 350 S.W.2d 333,335 (Tex. 1961); Abbott v. Pollock, 946 S.W.2d 

513, 517 (Tex. App.-Austin 1997, writ denied). The legislature has expressly authorized the 

commissioners courts of some counties to establish the work hours of county employees. See TEX. 

LOC.GOV’TCODEANN. $157.021(a)(Vemon 1999)( in county with population of 355,000 or more, 

a commissioners court is authorized to adopt uniform rules on the hours ofwork of employees whose 

compensation is set or approved by the court); id. 5 158.035(a) (adoption ofworking conditions in 

civil service counties). No such statute applies to the Somervell County Commissioners Court. 

Absent such express authority, a commissioners court may not interfere with a county official’s 

authority to set the hours that his office will be open or his implied authority to set the working 

conditions for his employees. See Tex. Att’y Gen. Op. Nos. JC-0239 (2000) at 3, JC-0131 (1999) 

at 3. See Tex. Att’y Gen. Op. Nos. C-350 (1964) at l-2 (constitutional countyofftcer may close his 

office on Saturday without approval of commissioners court); O-6679 (1945) at 2 (commissioners 

court lacks authority to require county of&es to be open 48 hours a week). Attorney General 

Opinion JC-0239, building on the reasoning of Attorney General Opinion JC-013 1, concluded that 

a county officer’s dismissal of employees for reasons other than bad 

weather, repairs, and the like is within the officer’s authority and not 

the authority of the commissioners court. [I]t is for the officer to 

determine what activities constitute a legitimate use of an employee’s 

official time, i.e., work time rather than vacation time. 

Tex. Att’y Gen. Op. No. JC-0239 (2000) at 4. See also id. at 5 (authority of commissioners court 

to condition county employees’ compensation on working or accounting for forty hours ofwork each 

week). Allowing the employees to take a day off must serve a public purpose within article III, 
The Honorable Ronald D. Hankins - Page 3 (GA-0303) 

section 52 of the Texas Constitution, which provides that the legislature shall have no power to 

authorize any county to grant public money to any individual. See TEX. CONST. art. IU, $52(a). See 

also Tex. Att’y Gen. Op. No. JC-0239 (2000) at 4 (improving employee morale may be a sufficient 

public purpose for granting time off); Tex. Att’y Gen. LO-96-136, at l-2 (expenditures to purchase 

small gifts, plaques, or flowers for funerals, weddings, or retirements of county employees may serve 

public purpose of increasing employee morale). Whether a particular office closure serves a public 

purpose must be determined in the first instance by the public official, whose decision is subject to 

judicial review. See Tex. Att’y Gen. Op. No. E-01 19 (1999) at 4. 

Attorney General Opinion K-0239 provides the answer to your question. The Somervell 

County Justice of the Peace, Precinct Two, has authority to decide to close his office and allow his 

clerk to take the day off in observance of the official day of mourning. Tex. Att’y Gen. Op. No. 

JC-0239 (2000) at 4. His decision that closing his office serves a public purpose is subject to judicial 

review. See id. 

You also ask whether the County Auditor of Somervell County is authorized to determine 

how the clerk’s time is to be charged for the day on which the Justice of the Peace closed his office 

for the official day of mourning. See Request Letter, supra note 1, at 2. Where an employee’s right 

to salary is established as a matter of law, the auditor has a ministerial duty to approve the payment. 

See Smith v. McCoy, 533 S.W.2d 457,460 (Tex. Civ. App.-Dallas 1976, writ dism’d); Tex. Att’y 

Gen. Op. No. JC-013 1 (1999) at 4. Once the salaries of county officers and employees are set, the 

salaries may not be reduced to account for office closures and “neither the commissioners court nor 

the county treasurer nor the county auditor may reduce the officers or employees’ pay or require that 

the time be charged to leave time.” See Tex. Att’y Gen. Op. No. JC-013 I(1 999) at 3. Accord Tex. 

Att’y Gen. Op. No. JC-0239 (2000) at 3. We conclude that the Somervell County Auditor has a 

ministerial duty to approve payment ofthe clerk’s salary for the official day of mourning as a regular 

work day and may not charge it to leave time. 
The Honorable Ronald D. Hankins - Page 4 (GA-03031 

SUMMARY 

A Somervell County official is authorized to set the hours that 

his office will be open as well as his employees’ working conditions. 

He may close the office and allow the employees to take the day 

off, assuming that there is a public purpose for the closing. The 

Somervell County Justice ofthe Peace, Precinct Two, was authorized 

to close his office on June 11,2004 for the official day of mourning 

honoring former President Ronald Reagan and to allow his clerk to 

take the day off. The Somervell County Auditor has a ministerial 

duty to approve payment of the clerk’s salary for the official day of 

mourning as a regular work day and may not charge it to leave time. 

Very truly yours, 

eneral of Texas 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WJLLETT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General, Opinion Committee