ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

September 2,2008

The Honorable Russell W. Malm

Midland County Attorney

200 West Wall Street, Suite 104

Midland, Texas 79701

Dear Mr. MaIm:

Opinion No. GA-0661

Re: Whether a county is authorized to pay a

performaIice-based bonus to elected officials

(RQ-0686-GA)

You relate that the Midland County Judge would like to adopt "a planwhichwould authorize

performance-based bonuses for elected officials.'" You explain how this bonus plan for elected

officials would work:

Under this plan, the bonuses would be based upon some quantifiable

system of measuring performance. If an elected official meets the

stated performance goals during the budget year, a bonus would

be awarded at that time. The plan would be approved by the

Commissioners Court during the regular budget hearing and adoption

proceedings, but the bonuses would be paid during the budget year.

The bonus would not be paid unlessthe elected official metthe stated

performance goal.

Request Letter, supra note 1, at 1. Specifically, you ask whether the "county [may] pay a

performance bonus to elected officials in addition to their salary," and ifso, in what marmer the

Commissioners Court should "list the bonus in the publication ofproposed salary increases." Id

The commissioners court is the governing body of a county, but it exercises only those

powers expressly conferred by the Texas Constitution orstatutes orthose powers necessarily implied

therefrom. See City ofSan Antonio v. City ofBoerne, III S.W.3d 22, 27-28 (Tex. 2003); Canales

v. Laughlin, 214 S.W.2d 451,453 (Tex. 1948). Among those powers is the authority, with certain

exceptions, to "set the amount of the compensation, office and travel expenses, and all other

allowancesfor county and precinct officers and employees who are paid wholly from county funds."

lLetter from Honorable Russell W. MaIm, Midland County Attorney, to Honorable Greg Abbott, Attorney

General of Texas, at I (Mar. 6, 2008) (on file witb tbe Opinion Committee, also available at http://www

.texasattomeygeneral.gov) [hereinafterRequest Letter].
The Honorable Russell W. Maim - Page 2 (GA-0661)

TEx. Lac. Gov'T CODE ANN. § 152.011 (Veni.on 2008). "Under section 152.011, the court may

confer upon county officers and employeessuch benefits as longevity pay, vacationleave,sick leave,

and paid holidays." Tex. Att'y Gen. Op. No. GA-0303 (2005) at 2.·

In considering the propriety of bonus awards to county employees, this office has said that

"[a] bonus may be paid to a county employee only if the commissioners court has approved the

bonus plan as part of compensation before the services are rendered," so as not to violate article III,

section 53 ofthe Texas Constitution. Tex. Att'y Gen. Op. No. JM-1253 (1990) at 2-3 (emphasis

added); see TEx. CaNST. art. III, § 53 ("The Legislature shall have no power to grant, orto authorize

any county ... to grant, any extra compensation, fee or allowance to a public officer, agent, servant

or contractor, after service has been rendered ...."). See also Tex. Att'y Gen. Op. Nos. JC-0376

(2001) at 4 ("Retroactive increases in compensation [paid to employees of a county court] for

services already rendered violate article III, section 53 of the Texas Constitution. Prospective

increases in compensation do not."); GA-0492 (2006) at 2 ("a county may provide bonuses based

on perfonnance ifthe county approved a bonus plan before employee recipients perfonned the work

for which the bonuses are given") (emphasis added). This office has never been asked about a

.county's authority to adopt a bonus plan for elected county officials, however, and we find no Texas

court decisions on the issue. Your question is thus one offirst impression, and given its novelty, we

limit our response to the bonus plan you describe, which is conditioned on the accomplishment of

perfonnance goals established by the Commissioners Court.

Despite a commissioners court's extensive authority in county budgetarymatters, it does not

follow that a commissioners court may set perfonnance goals, and pay bonuses contingent upon

achievement of those perfonnance goals, for independently elected county officials. "[E]lected

county officials hold 'virtually absolute sway over the particular tasks or areas of responsibility

entrusted to [them] by state statute. '" Hooten v. Enriquez, 863 S.W.2d 522, 531 (Tex. App.-El

Paso 1993, no writ) (quoting Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)). "In

Texas, an elected officer occupies a sphere .of authority, which is delegated to that officer by the

Constitution and laws, which another officer may not interfere with or usurp." Abbott v. Pollock,

946 S.W.2d 513, 517 (Tex. App.-Austin1997, pet. denied) (citingPritchard&Abbott v. McKenna,

350 S.W.2d 333, 335 (Tex. 1961)); see Renken v. Harris County, 808 S.W.2d 222, 226 (Tex.

App.-Houston [14thDist.] 1991, no writ).2 The sphere-of-authority limitation on a commissioners

court's powers is "founded in the policy that elected officers ... discharge the public trust and carry .

the responsibility for the proper discharge ofthat trust." Abbott, 946 S.W.2d at 517.

Prior opinions of this office have established that an officer's sphere of authority

encompasses the power to "detennin[e] how to deploy the resources placed at his disposal," to hire

and dismiss employees ofthe officer's choosing without interference from the commissioners court,

to set the officer's employees' work schedule, and to assign employees as the officer sees fit to

accomplish the duties of his office. Tex. Att'y Gen. Op. No. JC-0214 (2000) at 5. In one earlier

'Elected county offices are, for the most part, established by the Texas Constitution. See, e.g., TEx. CONST. art.

Y, § 18 (constable); id art. Y, § 19 (justice ofthe peace); id art. Y, § 20 (county clerk); id art. Y, § 21 (district and

county attorney); id art. V, § 23 (sherifl:); id art. XVI, § 44 (treasurer and surveyor).
The Honorable Russell W. MaIm - Page 3 (GA-0661)

opinion, this office said that "[a]n elected county official's authority to accomplish the constitutional

or statutory purposes ofhis ofher office encompasses the authority to dismiss his or her employees

for all or part of a day for any reason." Tex. Att'y Gen. Op. No. JC-0239 (2000) at 7. While "the

commissioners court retains control over the budgetary aspects of the county's employment

relationships, ... the county officer retains control over the accomplishment of his or her

constitutional and statutory duties through, among other things, the administration of his or her

office." Id at 3. See also Tex. Att'y Gen. Op. Nos. GA-0303 (2005) at 2 (elected official may

permit his employees to leave the office for holiday shopping or travel without being required to

charge such absence to accrued leave); GA-0037 (2003) at 4 (commissioners court may not, during

a budget year, "'freeze' a vacant position by requiring an elected officer to promote an existing

county employee or to obtain the court's" permission to fill the vacancy); JM-52l (1986) at 3

(commissioners court may not set working conditions for other county officials). In sum, the court

"may not micro-manage" an elected official's decisions as to the use of his resources. Tex. Att'y

Gen. Op. No. JC-0239 (2000) at 3.

These examples illustrate. the independent nature of an elected county official's sphere of

authority, his discretion within that sphere of authority, and the lack ofthe commissioners court's

authority to interfere with that discretion. Although a commissioners court may take into

consideration a county official's performance when it considers the official's overall budget for the

following year, we believe that to overtly condition an elected official's possible future bonus on the

achievement ofcommissioners-court-established performance goals would impermissibly interfere

with, and intrude upon, that official's sphere ofauthority. Were the official to permit his discretion

to be influenced by the court's performance goals, he might, consciously or otherwise, focus his

primary attention on achieving the court's goals rather than performing his statutory and

constitutional duties as he understands them. An elected official's performance is properly judged

by those who elected him.

Because a bonus plan that is premised on accomplished performance goals set by a

commissioners courtmay improperly interfere with an elected official's constitutionallybased sphere

ofauthority, we cannot advise you that the Commissioners Court is authorized to adopt such a plan.

Given, this conclusion, we need not address your second question, regarding the manner in which

the Commissioners Court should "list the bonus in the publication of proposed salary increases."

Request Letter, supra note 1, at 1.
The Honorable Russell W. MaIm - Page 4 (GA-0661)

SUMMARY

A bonus plan that is premised on accomplished performance

goals set by a commissioners court may improperly interfere with an

elected official's constitutionally based sphere ofauthority. Thus, we

cannot advise that a commissioners court is authorized to adopt such

a plan.

KENT C. SULLIVAN

First Assistant Attorney General

ANDREW WEBER

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Rick Gilpin

Assistant Attorney General, Opinion Committee