AInunnr, TISSAW anal1 

June 13, 1973 

The Honorable Weldon C. Wells 

County Auditor 

,202 County Courthouse 

Waco, Texas 76701 

Opinion No. H- 51 

Re: Whether Commissioners Court 

may authorize payments to 

survivors of a deceased employee. 

Dear Mr. Wells: 

You have requested the opinion of this office on the following questions: 

“1. May the Commissioners Court authorize 

payment to the beneficiaries of a deceased employee 

for unused vacation time and/or other compensation 

to which the employee was entitled at the time of his 

death? 

“2. May the Commissioners Court authorize any 

payment to the beneficiaries of a deceased employee on 

behalf of the employee for a period subsequent to the 

time of his death?” 

In your letter you state that this request was prompted by an order of 

the Commissioners Court that a change beg made in county policy relative 

to the death of county employees, retroactive to June 1, 1972, and effective 

immediately. The change would provide a death benefit of a determinable 

amount plus monetary compensation for any accrued and unused vacation 

time based on the employee’s monthly per diem rate. 

Section 51 of Art.icle j of t~he Texas Constitution provides in part: 

“The Legislature shall have no power to make 

any grant or authorize the making of any grant of 

public moneys to any individual, association of individuals, municipal or olhcr corporations what,- 

soever . . . .I’ 

p. 213 
The Honorable Weldon C. Wells, page 2 (H-51) 

Section 52 of Article 3 of the Texas Constitution provides in part: 

“Except as otherwise provided by this section, 

the Legislature shall have no power to authoriee any 

county, city, town or other political corporation or 

subdivision of the State to lend its credit or to grant 

public money or thing of value in aid of, or to any 

individual, association or corporation whatsoever, 

or to become a stockholder in such corporation, 

association or company . . . . ” 

Section 53 of Article 3 of the Texas Constitution provides: 

“The Legislature shall have no power to grant 

or to authorize any county or municipal authority to 

grant, any extra compensation, fee or allowance to 

a public officer, agent, servant or contractor, after 

service has been rendered, or a contract has been 

entered into, and performed in whole or in part; nor 

pay nor authorize payment of, any claim created against 

any county or municipality of the State, under any agreement or contract, made without authority of law. ” 

The Legislature has authorized compensation for county employees 

by enactment of Article 3912k, Vernon’s Texas Civil Statutes, which 

provides in part: 

“Except as otherwise provided by this Act 

and subject to the limitations of this Act, the 

Commissioners Court of each county shall fix 

the amount of compensation, office expense, 

travel expense, and all other allowances for 

county and precinct officials and employees who 

are paid wholly from county funds, but in no 

event shall such salaries be set lower than they 

exist at rhe effective date of this Act. ” 

While this statute authorizes the county to,fix the amount of compensation 

its employees shall receive, it does not and cannot authorize the counties 

to do that which is prohibited by the previously quoted provisions of the Texas 

p. 214 
. . 

The Honorable Weldon C. Wells, Page 3 (H-51)’ 

ConstituLion. It is therefore our opinion that the action of the commissioners 

court under consideration cannot be given the attempted retroactive effect. 

and can only have effect after the date of passage. Pierson v. Galveston 

County, 131 S. W. 2d 27 (Tex. Civ. App., 1939); Empire Gas & Fuel CO. v. Stale, 

47 S. W. Zd 265 (Tex. 1932). 

The order of the commissioners court authorizing payment of funds to 

the survivors of a deceased employee , measured by the salary of said 

employee, but to which said employee had no right at the time of his death, 

is in the nature of a death benefit provision. Ti?ere is no authority for the 

commissioners court to provide death benefits in this manner. 

Article 16, § 62(b), Texas Constitution, authorizes each county to provide 

for and administer a Retirement., Disability and Death Compensation Fund, 

but. does not authorize such benefits as those set out in the order under examination. 

The commissioners court is a court of limited jurisdiction and has 

only such powers as are conferred upon it by the Constitution and statutes 

of this State either by express terms or by necessary implication. Childress 

County v. State, 92 S. W. 2d 1011 (Tex. 1936); Hill v. Sterrett, 252 S. W. td 766 

(Tex. Civ. App. , 1952, error ref. 1 n. r. e. ); Von Rosenberg v. Lovett, 173 

S. W. 508 (Tex. Civ. App., 1915, error ref. ); Roper v. Hall, 280 S. W. 289 

(Tex. Civ. App. , 1925). The attempted grant of death benefits, in our 

opinion, is not authorized by the constitutional and statutory provisions 

relative thereto, and therefore constitutes an attempted grant or gift of 

public moneys to individuals in violation of the previously quoted constitutional provisions. 

Your request for our opinion coucerning unused vacation time and other 

compensation to which the employee was entitled recognizes that the payment 

under discussion is of compensation previously earned by the employee. lt 

is therefore our opinion that such payments would not constitute a gift or 

grant of public moneys. lt is also our opinion that the commissioners court 

IS authorized to make such payment~s for previously earned unused, vacation 

time Bnd other compensation by the provisions of Article 3912k, ‘V. T. C. S., 

which states that such court “shall fix the amount of compensation, office 

expense, travel expense and all other allowances. ” 

p. 215 
The Honorable Weldon C. Wells, page 4 (H-51) 

SUMMARY 

Upon the death of an employee, the Commissioners 

Court may authorire payments of accrued vacation time 

and for other earned compensation but may not authorize 

payment at death of other benefits not previously earned 

or accrued. 

Very truly yours, 

c/ Attorney General of Texas 

DAVID M, KENDALL, Chairman 

Opinion Committee 

p. 216 

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