Hon. J. D. Looney 

### opiniori lpo. 04388 1

County Auditor Rar: Bnploym~nt of additional deputies

and Bode County clerks in Bowie'County while regulardeputies Boston,

Texas and clerks are on vacation,

Dear Sir: '.

Your request

for'opiuion

has been received

and carefully

considered

by this department.We quote from your requestas follows:

"WhereSteno'sand Deputiestakes a vacationforgoneor Two Weeks, is the County liable for expense for extra help to carry on theirwork during their absence?"

'Article

39G2, Vernon's

Annotated

Texas Civil Statutes, reads inpart as follows:

uWhenever

any district,

county or precinctofficer shall.require

the serrices

of deputies,

assistants

or clerks in the performance of his duties~he

shall apply to t&County Commissioners' Court of his county for authority to appoint such deputies ; ,ass%stants

or clerks, stating by sworn application the nmber needed,

the position to be filled and the amnmtto be paid. Said application shallbe accompanied by a statement

shoeingthe probable receiptsfron fees, cdssioz~ and compensation to be collected

by said officeduringthe fiscalyear and the probable

disburs~ents which shall include all salaries and expenses

of said office3

and said ccnrt shallmake its order authorising

the appointment

of such deputies,

assistants

and clerksand fix the caapensation to be paid then within the linitations hereinprescribed

and deternine the numberto be appointed as in the discretion of said courtlnaybeproper; provided that in~no case shall the Commissioners'

Court or anynember thereof attsanpt

o influence

the appoinbnent

of any personas deputy,assistantor clerk in any office. Uponthe entry of such order the officers

applying,

for suchassistants, deputies
or clerksshsll be authoriaed to appointtheta;

provided that said compensation shall not exceed the na&mau amount hereinafter

Seth out. The compensation which may be allowed to the deputies,

assistants

or clerksabove naned for their servicesshall be a reasonable one, not to exceed the following snlountsr

. . .nHon. J. D. Looney, page 2 (O-5388)

We quote from Opinionlo. O-l&l of this department as followsr

"We are unable to find any statute dealing

with the sub-, ject of vacations

among counti officials. The same is true of deputies,

assistants

or other employees

authorised

to perform services

under the principal of any public office, with the etieption

of Ai-title 1583b, Penal Code of Texas,1925, which provides

that every regularly assigned jailer, jail guard, or jail matron at any county jail in any city of more than twenty-five

thousand (25,000)

inhabitants

shall be allowed fifteen (15;) days vacation, in each year with pay, not more than two (2) **members** to be on vacation at the same time.

%xmnissionersCourts are courtsof general jurisdiction when acting

within the sphere of the powers and duties conferred upon thmu, however,they are courts of limited jurisdiction in that their authority extendsorily

to matters

pertaining

to the general

welfare of their respective counties

and that their powers are only those expressly or impliedly

conferred

upon them by law -- that is, by the Constitution and statutes

of the State. 11 Tex. Jur. para. 37, p. 

### 564.

"The law imposes

upon each electiveofficial of a county certaindutiesconnected with his offioe

which he is obligated to faithfully

discharge

and perform. He is responsible for certain acts of his deputies; and in the matter of attending to and performing

the duties of his office,the law holds him responsible. Kany duties connected with a public officemust necessarily

be performed

by olerical

workers and assistants, who consequently

perform their duties solelyunder the direction of the principalin office. Especially is this true where their dutiesare not regulated by statute.

"The status of the variousdeputies, assistants

or clerks,
as providedin the above-quoted statute,

are varied. ,Sheriff deputies,

constable

deputies

and all county clerk deputies are considered

public officers. In a true sense, they performgovernmental

functions,

and where their duties are not prescribed
or regulated

by statute,they performa public service, sharing the~responsibility of office

with their

principal. Such officers stand on a footingdifferent from mere countyemployees -- the services

and employment

of the formerbeing authorized by law, the latterbeing based upon contract with the conmissioners
**COUI ”**  **L**

"An examination of the acts of the variouslegislatures for several

years past discloses that the general

appropriation

bill provisions,

as affecting

State mriployees,

permit twelve (12) workingday vacations, when agreed to betweenthe official andHon. J. D. Looney, page 3 (O-5388)

his enrployees.

If it can be said that the State has adopted~a

policy of allowing

paid,vacations,

a law which requires

a public officerto serve a year beforebeing allowedsuch vacation would, in our opinion, contravene such declared

policy, depriving

the government

oft better and more efficient service,

which is the only principle upon which such vacations can be sustained.

"Suchmatters of general office routineor mode in which a public officer, with the help.of

his authorized deputies,

assistants

and clerks,

performs the duties'of his office,

where not regulated by statute,

are not vested in the ccezmissioners court. We cannot

help but view the matter of regulation of hours ,andvacations of public officers in all governmental and political

units of the govemment as being solely-one of executive,

adninistrative~discretion,~subjedt

to be withdrawnorcontrolledby the Legislature.

"Vacations

are closelyidentified with general

adninistrative

powers vested in the holder of a public office. The only principle upon which vacations are permitted,

insofar as a declared

policy of the government would authorize same, appears

grounded

on a settled

policy of employees or public officers

entering

into an agreement

with their departmental or.office

head, under the latter'ssupervision and direction.

"As vacations

directly

affectthe discharging of the dutiesof a particular office,

the responsibility for which reposesin the principal of such office, the Commissioners Court, being nowise charged with such responsibility, would not be authorized, in the absenceof legislative authority, to assume controland attemptto regulate the same.

"It is, therefore,

the opinion

of this departmentthat the commissioners

court of a countydoes not have the authorityto pass an order providing that no vacations

with pay shall be allowedany mnployees of the county or deputiesor assis'tants

of county officers

until and unless such persons have been mnployed for a period of one year. Such order,being beyond the scope of power and authority vested in the Coznzissioners

Court, is ultra vires and void."

We quote from Opinion No. O-1876 of this department as follrms:

"You are respectfully advised that it is the opinionof this department

that the county clerk has the authority to pay a deputy

his regular salary during the absenceof'such deputyfrom eaployment due to sickness

or vacationfor a reasonablelength of time."Hon. J. D. Looney, page 4 (O-5388)

We enclose

herewith

copies of Opinions

Nos. O-l&l and O-1876.
Opinion

No. 04620 of this ~p@$wpt holds of Walker County,Texas, has no authority

to eplploy

a her a salaryas an authorized expenseout of his fees definesthe term "stenographer.*' that the countyattorney stenographer

and pay of office. This opinion

Opinion

No. O-1874 of this department, holds that when the countyattorney of LibertyCounty,Texas, ccmplies with Article 3902, V.A.C.S., a l'clerkn maybe appointed

for such county attorney. Opinion

No. O-1930 of this department holds that neither the county attorney

nor the commissioners' court has any statutory authority

to employa stenographer

for the county

attorneyof Johnson County, Texas, and pay for same out of countyfunds. This opinion further

holds that the commissioners' court of~Johnson

County,

Texas, a salary county, having a population in excessof 20,000 inhabitants

according

to the last preceding FederalCensus,

may authorize the employment

of a stenographer

by the county judge and pay for such services out of the generalfund of the~county to an amount not to exceedTwelve Hundred

Dollars ($1200.00)

per year. Opinion

No. O-4776 of this department holds that the commissioners' court of sector

County,Texas, a fee county, having a population of less than 20,000 inhabitants

according

to the last preceding FederalCensus,could not employa stenographer for the county judge or the conmissioners court, This opinion

holds however that the ccmmissi~ners~ court of Ector County could authorizethe county judge of such countyto appointa clerk.

We enclose

herewith

copies of Opinions Nos. o-1620,O-187& O-1930 and O-4776.

Subdivision

(a) of Section 13 of Article 3912e,Vernon's Annotated Texas Civil Statutes, applicable

to counties

having a population of 20,000 inhabitants

or.more

and less than 190,000 inhabitants, according

to the last precedingFederalCensus,is applicable to Bowie County,

Texas, a county

within the above population brackets,

and said subdivision reads as follows:

"The ccmmissionersl court may authorize the employment

of
a stenographer

by the county judge and pay for such services out of the general

fund of the county to an amount not to exceed TwelveHundred ($1200.00) Dollarsper year."

It is our opinionthat the only stenographer authorized

by law for any Bowie County officialis the stenographer for the county judge described in the next above quoted subdivision, No stenographer

could be.employed

by any county official

of Bowie County exceptfor the county judge. The sum of $1200.00

per annum is the limitwhich could be paid to the Bowie County Judge's stenographer.It is also discretionary with the ccaunissioners' court of Bowie County as to whetherthey will authorize the county judge to employ such stenograph-.Hon. J. D. Looney, page 5 (O-5388)

It is our opinion

that it is discretionary with the commissioners' court as to whether it will authorize the employment

of extra or additional deputies,

assistants

and clerksfor the various countyofficials during the time the regular

deputies,

assistants

and clerks

may be on vacations. In the absenceof authorization of the canmissioners court as outlined by Article~3902,

V.A.C.S.,

supra, such extrahelp could not be paid for from the Officers'

Salary Fund of the county. On the otherhand if properlyauthorized by the conanissioners~ court under Article 3902, V.A.C.S.,supra, such additional

deputies,

clerksand assistants would be entitled

to be paid from the Officers'

Salary Fund of your county.
Very truly yours,

ATTOEEEYGENE&U,OF TEEAS
By /s/ Wm. J. Fanning Wm. J, Fanning,

Assistant

@PROVEDJUN 24, 19b3 /s/ Grover Sellers FIBSTASSISTANTATTOBliEYGEEERAL

&PlZOi'EDt

OPINiON'

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Enclosures