AInunnr, TISSAW anal1
June 13, 1973 The Honorable Weldon C. Wells County Auditor ,202County 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 onthe following questions:

“1. May the Commissioners Court authorize payment to the beneficiaries of a deceased employee for unused vacation time and/or other compensation towhich the employee was entitled at thetime ofhis death?

**“ 2.**  May the Commissioners Court authorize any payment to the beneficiaries of a deceased employee on behalf ofthe employee for **a** period subsequent to the time ofhis death?” Inyour letter you state that this request was prompted by an order of the Commissioners Court that a change begmade in county policy relative to the death of county employees, retroactive toJune 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 51ofArt.icle j oft~heTexas Constitution provides in **part:**

“The Legislature shall have nopower to make any grant or authorize the making of any grant of public moneys to any individual, association **of in**  dividuals, municipal or olhcr corporations what,- soever . . . .I’

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

Section 52ofArticle 3of the Texas Constitution provides inpart:

“Except as otherwise provided by this section, the Legislature shall have nopower to authoriee any county, city, town or other political corporation or subdivision ofthe State to lend its credit or to **grant** public money or thing ofvalue in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company . . . .” Section 53ofArticle 3of the Texas Constitution provides:

“The Legislature shall have nopower to grant or to authorize any county or municipal authority to grant, any extra compensation, fee or allowance to apublic officer, agent, servant or contractor, after service has been rendered, or a contract has been entered into, and performed inwhole or inpart; 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 oflaw. ” 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 tothe 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 andprecinct 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 thatwhich 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 ofthe commissioners court under consideration cannot be given the attempted retroactive effect. and can only have effect after the date ofpassage. Pierson v. Galveston County, 131S.W.2d 27 (Tex. Civ. App., 1939); Empire Gas & Fuel CO. v. Stale, 47S.W. Zd265 (Tex. 1932). The order ofthe commissioners court authorizing payment offunds to the survivors ofa deceased employee , measured bythe salary of said employee, buttowhich said employee had no right atthetime of his death, is in the nature ofa death benefit provision. Ti?ere is noauthority for the commissioners court toprovide 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 suchbenefits as those set out in the order under examination. The commissioners court is a court of limited jurisdiction andhas 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. 1n.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 towhich the employee was entitled recognizes that the payment under discussion is of compensation previously earned bythe employee. lt is therefore our opinion that such payments would not constitute agift or grant ofpublic moneys. lt is also our opinion that the commissioners court IS authorized tomake such payment~s for previously earned unused,vacation time Bndother compensation by the provisions ofArticle 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. 215The Honorable Weldon C. Wells, page 4 **(H-51)**

SUMMARY Upon the death ofan 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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