.~ ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January 25,2007

The Honorable Rex Emerson Kerr County Attorney County Courthouse, Suite BA-103 700 Main Street Kerrville, Texas 78028~ Opinion No. GA-0503

Re: Whether a county commissioners court may delegate nonstatutorily assigned duties to other elected county officials (RQ-0504-GA)

Dear Mr. Emerson:
You ask whether acounty commissioners court may delegate nonstatutorily assigned duties to other elected county officials.’
In 1992 the Kerr County Commissioners Court approved an order designating the Kerr County Treasurer asthe county personnel officer! The order assigned several duties tothe personnel officer: [The] Personnel Officer shall be required to and shall have the

responsibility ofkeeping and maintaining personnel tiles of each county employee, as required by the Court or the personnel rule&] assisting in the administration ofthe Kerr County Personnel Policies, preparing reports and documentation .required by state and federal agencies regarding personnel matters, maintaining time records, monitoring accumulations of vacation, sick leave, and overtime, administering the benefits programs, and.working with the County Auditor in matters of accounting and compensation. The County Personnel Officer shall assist Elected Officials, Department Heads, and Supervisors in personnel matters and shall make such reports to the Commissioners[] Court as may be requested by the Court.

Kerr County Commissioners Court, Order No. 21189: Appointment of Barbara Nemec as County Personnel Officer (Nov. 23, 1992), attached to Tinley Brief, suyra note 2.

‘SeeLetter from Honorable Rex Emerson, Kerr County Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (June 28, 2006) (on tile with the Opinion Committee, ako mailable af http:iiwww.oag.state.tu.us) [hereinafter Request Letter].

%!kzLetter from Honorable Pat Tinley, Kerr County Judge, to Honorable Greg Abbott, Attorney General of Texas, at 1(Aug. 2,2006) (on tile with the Opinion Committee) [hereinafter Tinley Briefj.The Honorable Rex Emerson - Page 2 (GA-0503)

The treasurer served as county personnel officer until June 12,2006, when she informed the commissioners court that she “would no longer perform the human resource functions, citing alack of staff and/or financial resources.” Tinley Brief, supra note 2, at 1; see Memorandum to Kerr County Judge Pat Tinley et 

### al. from Barbara Nemec, Kerr County Treasurer (June 12, 2006), attached to Tinley Brief, 

### supra note 2. The county judge asserts that the commissioners court has implied power to assign.to an officer ofthe commissioners court’s choosing duties and functions that
are not assigned by law to a specific officer. Brief attached to Request Letter, supra note 1, at 1. The county judge further asserts that the treasurer may not unilaterally decline to perform tasks that the commissioners court has delegated to her office. 

### Id. And because the commissioners court intends to review several elected county officials’ job descriptions, you believe the issue may arise with respect to officers other than the treasurer. See 

### id.
Under article V, section 18(b) ofthe Texas Constitution, acounty commissioners court “shall exercise such powers andjurisdiction over all county business, as is conferred by this Constitution and the laws ofthe State.” TJZX. CONST. art. V, 5 18(b). As the Texas Supreme Court said in a 1997 case, Commissioners Court ofTitus 

### Countyv.

### Agan, acommissioners court is“the county’s principal governing body.” 

### Commks Court of Titus County v. Agun, 940 S.W.2d 77, 79 (Tex. 1997). Nevertheless, article V, section 1X(b)does not provide acommissioners court with “general and all- ,inclusive” jurisdiction over county business; rather, acommissioners court’s jurisdiction “is limited to such asis specifically conferred bythe Constitution and statutes.” 

### Anderson v. Wood,152S.W.2d 

### 1084, 1085 (Tex. 1941); 

### accordCunalesv. Laughlin, 214 S.W.2d 451,‘453 (Tex. 1948). Where the law confers a right or obligation on a commissioners, court, “it has implied authority to exercise a broad discretion to accomplish the purposes intended.” 

### Anderson, 152 S.W.2d at 1085. Moreover, while the commissioners court “cannot take core functions” from an elected county official, itmay delegate to an “appropriate county official” a function that the Legislature has not exclusively assigned to a particular county official. 

### Agan, 940 S.W.2d at X0-8 1;

### accord Tex. Att’y Gen. Op. Nos. GA-0277 (2004) at 3, DM-440 (1997) at7. A “core function” is aduty that has been expressly assigned to a particular office by the constitution or statutes. See 

### Agan, 940 S.W.2d at 80-82; 

### accord Tex. Att’y Gen. Op. No. JC-Q176 (2000) at 1. 

### Agan is helpful in analyzing the issue you raise. In

### Agan the court considered whether the Titus County Commissioners Court “may divest the County Treasurer of payroll preparation responsibilities and transfer those responsibilities to the County Auditor.” 

### Agun, 940 S.W.2d at78. Specifically, the Titus County Commissioners Court had transferred from the treasurer’s office to the auditor’s office the following duties:

(1) collecting timesheets from all county departments, entering timesheet data into the county computer system to generate payroll deductions for FIT, FICA, Medicare, insurance; retirement, and child support payments; (2) making FIT deposits with bank; (3) making child support deposits with appropriate offices; (4)depositing payroll funds; (5) paying insurance premiums; (6) preparing insurance claims; (7) wiring payments to third party administrators; (8) answering questions about insurance claims or payments; (9)The Honorable Rex Emerson - Page 3 (GA-0503)

preparing and transmitting W-2’s and 1099’s; and (10) preparing payroll checks.


### Id. at79. The court suggests that the transferred duties are oftwo types: payroll preparation duties
as typified by the duties numbered (l), (6), (8), (9), and (10) and the disbursement of county funds
as typified by the duties numbered (2), (3), (4), (5), and (7). See 

### id. at 81-82.
After outlining the commissioners court’s jurisdiction, the Agun court examined the treasurer’s core duties or functions. See 

### id. at 80. Article XVI, section 44(a) of the Texas Constitution, which establishes the county treasurer’s office, gives the Legislature the responsibility to prescribe the treasurer’s duties. See 

### id.;see also TEX.CONST.art. XVI, 544(a). Under chapter 113ofthe Local Government Code, wherein the Legislature established the county treasurer’s duties, the county treasurer isthe “chief custodian ofcounty funds.” Agun, 940 S.W.2d at 80 (quoting TEx. LOC.GOV’TCODEANN. 5 113.001). The court lists the treasurer’s core functions, derived directly from chapter 113:

. The treasurer is required to keep county funds “in adesignated depository and account for all money belonging to the county.” 

### Id. (quoting TEX.Lot. GOV’TCODEANN.3 113.001).

. The county treasurer must “keep an account of’ all money received, all expenditures of county funds, and all debts owed by the county. 

### Id. (quoting TEX.Lot. GOV’T CODEANN. 5 113.002).

. The treasurer must “keep accurate, detailed accounts of all the transactions ofthe treasurer’s office.” 

### Id. (quoting Tkx. LOC. GOV’TCODEANN. Y$

113.002).

. The treasurer “shall receive allmoney belonging to the county.” 

### Id. (quoting TEX.Lot. GOV’TCODEANN. 5 113.003).

. The treasurer must disburse county money and “pay and apply the money as required by law and as the commissioners court may require ur direct, not inconsistent with law.” 

### Id. (quoting TEX.Lot. GOV’TCODEANN. § 113.041(a)).
As 

### Agan makes clear, the commissioners court cannot take these core functions from the county treasurer. 

### Id. On the other hand, the court recognized that the law does not expressly assign certain functions that .a county may find necessary to perform. See 

### id. at 81. In such a case, the county commissioners court has, within its legislative powers, “broad discretion” in assigning the function to an appropriate county official. 

### Id.
The 

### Agan court found that neither the Texas Constitution nor statutes have specifically designated the county office that is to perform payroll preparation duties. 

### Id. Because payroll preparation responsibilities have not been assigned by law, according to

### Agan, “the CommissionersThe Honorable Rex Emerson - Page 4 (GA-0503)

Court acting in its legislative capacity may delegate the responsibilities to an appropriate county official.” 

### Id. And the court found that the county auditor is an “appropriate county official” to perform payroll preparation duties because the auditor has statutory authority toperform the clerical functions associated with those duties. 

### Id. On the other hand, the

### Agun court determined that those duties that involve disbursing county funds are core functions ofthe county treasurer that the county commissioners court may not reassign. See 

### id.at 82.
You suggest that

### Agan does not apply here because the county treasurer is anelected official,
as opposed to the appointed county auditor to whom the Titus County Commissioners Court had delegated duties in that case. See Brief attached to Request Letter, supra note 1,at 3-4. Agan does not suggest, however, that the initial delegation to the county treasurer,~ an elected officer who wanted to perform the duties, was improper. 

### Seegenerally Agan, 940 S.W.2d at 79-82.

In answer to your question we conclude, consistently withAgan, that acommissioners court has authority to delegate to an appropriate elected county official duties that are ,not expressly assigned by the constitution or statutes. See Brief attached to Request Letter, 

### supra note 1, at 1. And, applying the 

### Agan analysis to determine whether a commissioners court may delegate the personnel duties described in the 1992 order to the county treasurer, we first find no constitutional
or statutory provisions that expressly delegate such duties to the treasurer. See Kerr County Commissioners Court, Order No. 21189: Appointment of Barbara Nemec as County Personnel Officer (Nov. 23,1992), attached to Tinley~Brief, supra note 2. Consequently, none ofthe personnel duties at issue are within the treasurer’s core functions. Cf:

### Agan, 940 S.W.2d at 80 (enumerating county treasurer’s core functions). Assuming, therefore, that the duties are not within another county officer’s core functions-and you do not suggest that they are-the commissioners court may delegate the functions to the treasurer ifthe commissioners court finds the treasurer to be an appropriate official. See 

### id. Whether a particular county 

### officer is an appropriate county official to whom the commissioners court may delegate certain tasks is a question of fact that the commissioners court must determine in the first instance. Cf: Tex. Att’y Gen. Op. No. GA-0446 (2006) at 18(“Questions of fact are not appropriate to the opinion process.“). The commissioners court’s determination is subject tojudicial review. Cf:TEX.CONST. art. V, 58(giving the district court “general supervisory control” over the county commissioners 

### court);Bomerv.Ector County Comm ‘rsCourt,676S.W.2d 662, 665 (Tex. App.-El Paso 1984, writ ref d n.r.e.) (stating that a commissioners court’s action “is subject to review by the district court in the exercise oP’ its constitutional authority). Although the commissioners court may delegate unassigned duties to an appropriate county officer such asthe county treasurer, the commissioners court’s authority to require the treasurer to perform delegated duties is limited to its authority over the budget. Cf: Tex. Att’y Gen. Op. No. GA-0322.(2005) at 2 (“Only through [its] budget power is the commissioners court able to influence the actions ofother elected officials.“).
Further, the commissioners court may not, by assigning noncore functions to a particular constitutionally established office, restrict orprevent the officer’s ability to perform core functions. Cf: 

### Vondy v. 

### Comm’rs Court of Uvalde County, 714 S.W.2d 417,422 (Tex. App.-San AntonioThe Honorable Rex Emerson - Page 5 (GA-0503)

1986, writref dn.r.e.) (stating that acommissioners court cannot restrict orabolish aconstitutionally established oflice by refusing to reasonably compensate the office holder orby preventing the office holder from performing required duties). It is possible that in particular circumstances a commissioners court might assign so many noncore duties to an officer without sufficient financial support that the officer cannot adequately perform the office’s core functions. Whether this has happened in this or any other case is aquestion offact that cannot be resolved inthe opinion process. Cf: Tex. Att’y Gen. Op. No. GA-0446 (2006) at 18 (“Questions of fact are not appropriate to the opinion process.“).The Honorable Rex Emerson - Page 6 (GA-0503)



### SUMMARY’

A commissioners court may delegate duties that are not assigned by the constitution or statutes to an elected county official whom the commissioners court determines is appropriate. But the commissioners court’s authority to require the officer to perform the delegated duties is limited to its authority over county budgeting. And the county commissioners court cannot, in delegating noncore duties to an official, impair the official’s ability to perform the office’s core duties. Very truly yours,

KENT C. SULLIVAN First Assistant Attorney General
ELLEN L. WITT Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee