### ATTORNEY GENERAL OFTEXAS 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 ofmourning” (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 asavacation 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 ofPrecinct Two closed his office for the day and soinformed his clerk. See 

### id. Seealso TEX.GOV’TCODE ANN. 527.056(a) (Vernon 2004) (justice ofthe peace may designate one ormore persons to serve as clerks). When the next pay period for county employees arrived, the County Auditor for Somervell County charged the clerk avacation 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, at2. You also askwhether 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 ofthe Peace closed his office. 

### Id. Attorney General Opinion JC-013 1concluded 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 acounty 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’TCODEANN. 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) at4 (vacation and sick leave), MW-438 (1982) at 2 (paid holidays); Tex. Att’y Gen. LO-96-007, at 2 (longevity pay).
However, acommissioners 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 

### CityofSanAntonio v. CityofBoerne, 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 ornecessarily 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 ofcounty employees. See TEX. LOC.GOV’TCODEANN. $157.021(a)(Vemon 1999)( 

### incounty with population of355,000 or

### more, acommissioners court isauthorized to adopt uniform rules on the hours ofwork ofemployees 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 ofAttorney General Opinion JC-013 1,concluded that

a county officer’s dismissal of employees for reasons other than bad weather, repairs, and the like iswithin the officer’s authority and not the authority of the commissioners court. [I]t is for the officer to determine what activities constitute alegitimate use ofan 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 oraccounting for forty hours ofwork each week). Allowing the employees to take a day off must serve apublic 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) at4 (improving employee morale may be asufficient public purpose for granting time off); Tex. Att’y Gen. LO-96-136, at l-2 (expenditures to purchase small gifts, plaques, orflowers for funerals, weddings, orretirements ofcounty employees may serve public purpose ofincreasing employee morale). Whether aparticular office closure serves apublic 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 ofthe 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) at4. His decision that closing his office serves apublic purpose is subject tojudicial review. See 

### id.

You also ask whether the County Auditor of Somervell County is authorized to determine how the clerk’s time isto be charged for the day on which the Justice of the Peace closed his office for the official day ofmourning. See Request Letter, supra note 1,at2. Where an employee’s right to salary is established as amatter of law, the auditor has aministerial 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 orrequire 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 forthe official day ofmourning as aregular 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 setthe hours that his office will be open aswell ashis 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 aregular work day and may not charge itto 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