.~ 

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 a county 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 as the county personnel officer! The order assigned several duties to the personnel 

officer: 

[The] Personnel Officer shall be required to and shall have the 

responsibility of keeping and maintaining personnel tiles of each 

county employee, as required by the Court or the personnel rule&] 

assisting in the administration of the 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. 

‘See Letter 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]. 

%!kz Letter 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 a lack 

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 of the 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, a county commissioners court “shall 

exercise such powers and jurisdiction over all county business, as is conferred by this Constitution 

and the laws of the State.” TJZX. CONST. art. V, 5 18(b). As the Texas Supreme Court said in a 1997 

case, Commissioners Court ofTitus County v. Agan, a commissioners 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 1 X(b) does not provide a commissioners court with “general and all- 

,inclusive” jurisdiction over county business; rather, a commissioners court’s jurisdiction “is limited 

to such as is specifically conferred by the Constitution and statutes.” Anderson v. Wood, 152 S.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, it may 

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) at 7. A “core function” is a duty 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 at 78. 

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. at 79. The court suggests that the transferred duties are of two 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, 5 44(a). Under chapter 

113 ofthe Local Government Code, wherein the Legislature established the county treasurer’s duties, 

the county treasurer is the “chief custodian of county funds.” Agun, 940 S.W.2d at 80 (quoting TEx. 

LOC. GOV’T CODE ANN. 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 a designated 

depository and account for all money belonging to the 

county.” Id. (quoting TEX. Lot. GOV’T CODE ANN. 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 CODE ANN. 5 

113.002). 

. The treasurer must “keep accurate, detailed accounts of all the 

transactions of the treasurer’s office.” Id. (quoting Tkx. LOC. 

GOV’T CODE ANN. Y$ 113.002). 

. The treasurer “shall receive all money belonging to the county.” 

Id. (quoting TEX. Lot. GOV’T CODE ANN. 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’T CODE ANN. § 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 8 1. 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 Commissioners 
The 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 to perform 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 an elected 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. See generally Agan, 940 S.W.2d at 79-82. 

In answer to your question we conclude, consistently withAgan, that a commissioners 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 of the 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 if the 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 to judicial review. Cf: TEX. CONST. art. V, 5 8 (giving the district court “general supervisory 

control” over the county commissioners court); Bomer v. Ector County Comm ‘rs Court, 676 S.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 as the 

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 of other 

elected officials.“). 

Further, the commissioners court may not, by assigning noncore functions to a particular 

constitutionally established office, restrict or prevent 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 Antonio 
The Honorable Rex Emerson - Page 5 (GA-0503) 

1986, writref dn.r.e.) (stating that acommissioners court cannot restrict or abolish aconstitutionally 

established oflice by refusing to reasonably compensate the office holder or by 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 a question of fact that cannot be resolved in the 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