August 31, 1970

Honorable Jw Reeweber CountyAttorney Harris County Courthouse Houeton, Texas **77002**

**Dear** Mr. **Resweber:** OpinionNo. M-678 Re: May Harris County create the position of executive assistant to the **four** County Commissionersunder the stated fact situation **and** related questiona. Your recent request for an opinion asks **for an**  answer to questions as follows:

"1. Is the CommissionersCourt authorized to create the position of executive afssistant to the four (4)County Commissioners (and **provide** for a salary of $14.400.00per year and an automobile and other equilxaent **for** much porition) at thin time without ruch positionhaving be&n pre- "" viously approved and eatabliahed in the 1910 County Budget?
**” 2** 
**.** Could such action legallybe taken by the Conunisrrioners Court without the matter having been specifically included in the written notice of the meeting at which such actionwas taken?

**“ 3.**  Can Harrie County legally expend funds for the payment **of** the salary and automobile (andequipnent) prwided for as indicated in "1" and **“ 2** **”** above?" In answer to your fir8t question, it is **our** opinion that the **Conmimuioners** Court is authorized to hire an "executive amrL8tant" and prwida **for** him indicated eguipmenh for tha **purpose** of **performing** adminimtrative and executive function8 and **dutias** a@ an employee. **So ’**  long as thm **dimamtimuy**
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and policymaking functions of the coanniaaionera **are not**  delagated to the employees, no legal inhibition is involved.

In 15Tex.Jur.Zd 277, Counties, Section 48, it is stated: "In the absence of an enabling statute the powers of a commiaaionera'court that involve exercise **of** judgmentand discretion cannotbe delegated. . . ." This officehas previouslyheld, in Opinion O-1175, (1939)that there is no authority for the office of "w aentative" of the commissionerscourt:however, where the Dallas County CommissionersCourt hired an engineering firm to assist the county road engineer, an employee, the court said:

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. . . It is furtherwell settled that the Commissioners' Court may employ persona to assist even an officer in the performance of statutoryduties:

. . . or to perform serviceswhich do not involve the exercise of any qwernmental function: . . ." Hill v. Sterrett, 252 S.W.Zd 766 (Tex.Civ.App.1952, Ref. N.R.E.) citingTerre11 v. **Greene,** 88 Tex. 539, 31 S.W. 631 and Strinser v. Franklin Countv, 123 S.W. 1168 (Tex.Civ.App.1909,no writ.). The general rule is that countieshave implied authority to employ agents and servants. 20 C.J.S. 896, Counties, Section 101(l):p. 1014, Sect. 180.

In gano v. Palo Pinto Countv, 71 Tex. 99, 8 S.W. 634, 636 (1888).the Supreme Court of Texas recognized that it is the duty of the Coanniaaioners Court ". . . to select themselves such agents as may be necessary to assist them in the discharge of their functions. . . .'I

Again, inmd 61 Abbott v. m, 162 Tax. 617, 350 S.W.Zd 333 (1961),the Supreme Court was faced with the question of whether the Commiaaioner8 Court had the implied authority to contract for certain **sorviwa.** Noting tha constitutionaland statutory duties and functions **of** the Coaaaiaaionera Court, the Court made the followingholding: -3240-. .

Honorable Joe **Hesweber. page**  **3 (M-678)** 
"Admittedlythe Commiaaionera Court is not expressly clothedwith constitutional or statutory authority to contract for the services detailed ?.I? this agreement,but we think that authority is implied from the powers thathave been expressly granted to and the duties imposedupon this body by **law. ”**  **(at** p. 334).

**In view**  of 'theforegoing,we must hold that the Harria County Commiaaionera'Court has the impliedpower to hire an "executiveassistant" employee to assist the commisaionera in the discharge of their functions and duties. Howaver, this position is not an office and the holder thereofmay not in any **measure** usurp the functions and duties of the **members** of **the** Commiasionera'Court as public officers. It necessarily follows that the commissionerscourt also **has** the authority to pay the employee a salary and providehim with the equipment reasonably necessary to **perform** the functions forwhich'the employee or assistantwas hired. This would includean automobile,provided it,waadeeme necessaryto accomplish the task **of** the position.Answering your next question,we note thatbudgetr for counties over 225,000population are controlled'byArticle 1666a,Vernon's Civil Statutes,which reads, in part, as follows:

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. . . Upon final approval **of** thebudget by **the** CommissionersCourt, a copy **of** suchbudget as approved shallbe filedwith the CountyAuditor, the Clerk of the Court, and the StateAuditor, and no expenditures of the funds of the county shall thereafterbe made except in strict compliancewith saidbudget. . . ." This article further allows for the transfer **of** surplusbudgeted funds, during a year, to another fund, as long as the totalbudget is not inaeaaed.

Article 1666a further provides in part that: II

. . . The amount set aside in any budget for any purchase order or requisition, contract, special purpose, or salary and labor account shall **-3241-**. .

Honorable Joe Reoweber. p89e 4 **(M-678)**

notbe available for alloc8tion for ahv other purnoae unless an unexmnded balance remains ia the account after full discharqe **of** the obliaat&: or unless the reauiaition. contract, or alloaatiq has Men cancelled inwritinq bv the Coaania8ionu8 c In answer to your budget question,we have concluded that the salary **for** the new aaaiatant canbe provided for if the proviaiona for re-allocation of budgeted funda, emphe8ised above, are strictly compliedwith, and the totalbudget is not increased. Your 8econd question is thus anmwered in tha **affir** mative. Your second question raise8 the gueation **of whothar**  specificnotice to the public is required in the abwe m8ttum. Routinematter8 of bu8ine88, 8uch a8 the hiring of an'employee, may ba considered oven though not mentioned in the notice **,of** meeting requiredby Article 6252-17,Vernon'8 Civil'Statute8, as amendedby Senate Bill 26, Chapter 227, 618t.Leqi8lature; The statute expres8ly excepts **frcm** its application thole de**liberations** wherein consideration is given to the appointment or employment **of** an employee. If such couldbe accompli8hed in a "closedmeeting" itwould not appear that the namewould necessarily have to be included in the notice to the public,which **may** ba excluded **from** that type **of** proceeding.

Cur answer to your first question include8 **tha** answer to your third question.

**SUMMARX** The CommissionersCourt is authorized to hire an "executiveaaaiatant" to the four cornmiaaionera,with **proper** limitationa of power, and to provide such employeewith variou8 item8 of eguipnent and an automobile nema8ary for the **performance of**  hi8 duties. The expen8e **of** the position, including salary,may be **met** by reallocation of **budgeted** funds if the methods fa **-3242-**Honorable Joe Reawbu, pSqe 5 (M-678)
re-allocation **set aut**  in **Article** 1666a,Vernon'8 Civil Statutes, are strictly adhered to. It 18 **not necerrary**  **to ?OSt**  notic of the hiring **Of** 8r. employee prior to camni88ionera caurtmeeting.

Preparedby **Melvin E.**  Corley Aaaiatant Attorney Qeneral APPROVED: OPINION CCMMIlYBB Kerns Taylor, Chairman W. E. Allen, Co-Ch8irmen Gordon Cans 'BobPlowers John Banks RolandAllen MEADE F. **GRIFFIN** Staff Legal **ASSiStant** ALFRED WALKER Executive **ASSiStant** NOLAWHITE First ASSiStSnt

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