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)

Yourelate thatthe Midland CountyJudge wouldlike to adopt "aplanwhichwould authorize performance-based bonuses for elected officials.'" You explain how this bonus plan for elected officials would work: Underthis plan, the bonuses would be based upon some quantifiable system ofmeasuring performance. Ifan 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 Courtduringtheregularbudgethearing and adoption proceedings, but the bonuses would be paid during the budget year. The bonus wouldnotbepaidunless the 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 conferredbythe Texas Constitutionorstatutes orthosepowersnecessarilyimplied therefrom. See City of SanAntonio v. City of Boerne, 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 allowances forcounty andprecinctofficers andemployees who are paidwholly from countyfunds."

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

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TEx. Lac. Gov'T CODE ANN. 

### § 152.011 (Veni.on 2008). "Under section 152.011, the court may conferupon countyofficers andemployees suchbenefits as longevitypay, vacationleave, sickleave, and paid holidays." Tex. Att'y Gen. Op. No. GA-0303 (2005) at 2.· In considering the propriety ofbonus awards to county employees, this office has said that "[a] bonus may be paid to a county employee only ifthe commissioners court has approved the bonus plan as part ofcompensation before the services are rendered," so as notto 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 powerto 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 onperfonnance ifthe county approved abonus planbefore employee recipients perfonnedthe work for which the bonuses are given") (emphasis added). This office has never been asked about a

.county's authorityto adopt a bonus plan for elected county officials, however, and we find no Texas courtdecisions onthe 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 countybudgetarymatters, itdoes not follow that a commissioners court may set perfonnance goals, and pay bonuses contingent upon achievement ofthose perfonnance goals, for independently elected county officials. "[E]lected county officials hold 'virtually absolute sway over the particular tasks or areas ofresponsibility 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 .ofauthority, which is delegated to that officer by the Constitution and laws, which another officer may not interfere with or usurp." Abbottv. Pollock, 946 S.W.2d 513, 517 (Tex. App.-Austin 1997, pet. denied) (citingPritchard&Abbottv. 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-authoritylimitationonacommissioners court's powers is "founded inthe 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 athis disposal," to hire and dismiss employees ofthe officer's choosing withoutinterference fromthe commissioners court, to set the officer's employees' work schedule, and to assign employees as the officer sees fit to accomplish the duties ofhis office. Tex. Att'y Gen. Op. No. JC-0214 (2000) at 5. In one earlier

'Electedcounty offices are, forthe mostpart, establishedbythe 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

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opinion, this office saidthat "[a]nelectedcounty official's authorityto accomplishthe constitutional or statutory purposes ofhis ofher office encompasses the authority to dismiss his or her employees for all or part ofa 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 ofhis 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 ofhis resources. Tex. Att'y Gen. Op. No. JC-0239 (2000) at 3. These examples illustrate. the independent nature ofan elected county official's sphere of authority, his discretion within that sphere ofauthority, 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 thatto overtly condition an electedofficial's possible future bonus onthe achievementofcommissioners-court-establishedperformance goals would impermissiblyinterfere with, and intrude upon, that official's sphere ofauthority. Were the official to permithis 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 properlyjudged by those who elected him. Because a bonus plan that is premised on accomplished performance goals set by a commissioners courtmayimproperlyinterfere withanelectedofficial's constitutionallybased sphere ofauthority, we cannotadvise you thatthe Commissioners Courtis authorizedto adopt such aplan. 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 ofproposed salary increases." Request Letter, 

### supra note 1, at 1.The Honorable Russell W. MaIm

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### SUMMARY A bonus plan that is premised on accomplished performance goals set by a commissioners courtmay improperly interfere with an electedofficial's constitutionallybased 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