AUS’FIN. T’EXAS %iJ711 

CRAWFORD c. MARTlN 

#x-row oSeptember ~10, 1968 

Honorable Henry Wade Opinion No. W- 277 

District Attorney 

Dallas C,ounty 

Dallas, Texas 75202 

Re: Whether the Commissioners Court 

of Dallas County has the op- .- tion to expend bounty funds 

in’ the repair, maintenance and 

operation of court houses and 

other public’buildings through 

its own employees or through an 

Dear Mr. Wade: independent contractor. 

We have received a request from your office-for an 

official opinion in regard to,the above stated matter. We quote 

from your,request a0 follows: 

“The Commissioners Court of Dallas County, 

Texas, has asked thie office tom request from you 

your official opinion a8 to the proper answer to 

the following legal question: 

“‘Does the Commissioners’ Court of Dallas 

County have the option to expend county funds in 

the repair, maintenance Ind operation of court. 

houses and other necessary public buildings, 

either by accomplishing its statutory duty and 

authority under Article 2351, V.A.C.S.;throtigh 

it a own employees or 

tractors? ’ ’ 

through independent con- 

“It is our tentative opinion..that the Commissioners’ Court of Dallas County has the power 

and authority to accomplish any of the statutory 

duties contemplated by Article 2351, V.A.C.S., at 

its option and at its election, by’contracting for 

the performance thereof either, by and through 

county emploqeee or by and through independent 

contractora. 

The pertinent provision of Article 2351, Vernon’s Civil 

Statutes, provides: 

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Hon. Henry Wade, page 2 (M-277) 

"Each commissioners court shall: 

11 

. . . 

"7 . Provide and keep in repair court houses 

jails and all necessary public buildings. 

II II 

. . . 

The above quoted provision of Article 2351 -was considered 

in detail by the Texas Supreme Court In Anderson v. Wood, 137 Tex. 

201, 152 S.W.2d 1084 (1941). The court stated at page TO&: 

'We will first discuss the question as to 

who has the right to employ and discharge the 

court house engineer, janitor, and elevator operators. The exact question here under consideration does not appear to have ever been 

judicially determined In this State. Our 

Constitution, Article V, Section 18, Vernon's 

Ann. St., provides In part as follows: 'The 

county commissioners so chosen, with the county 

judge, as presiding officer, shall compose the 

County Commissioners Court, which shall exercise 

such powers and jurisdiction over all county 

business, as Is conferred by this Constitution 

and the Laws of the State, or as may be hereafter 

prescribed.' While under the above constitutional 

provision the jurisdiction of the Commissioners' 

Court over county business is not general and allinclusive, but is limited to such as Is specifically 

conferred by the Constitution and statutes (Mills 

County v. Lampasas County. 90 Tex. 603, 40 S.W. 403), yet 

the Commissioners' Court is the acting governing body 

of the county Ehlinger v. Cl k 117 T 

8 S W 26 bbb*'Jernigan v. 

54'1 549 

24;'AAderson'v. Parsley, 

Finlz,'gO Texexb05, 58 S.G. 

Tex.Clv.App. 37 S.W.2d 358. 

It is the general business and contracting agency of 

z;;c;u;;y, and it alone has authority to make conndinn on the county, unless otherwise 

specifically provided by, statute. 11 Tex.Jur. 630; 

American Disinfectin Co. v. Freestone County, Tex. 

Civ.App., 193 S.W. 4 & 0; Germo Mfg. Co. v. Coleman 

County, Tex.Civ.App., 184 S.W. 1063; Matthews 

Lumber Co. v. Van Zandt County, Tex.Clv.App., 77 

S.W. 960; Fayette County v. Krause et al., 31 Tex. 

Civ.App. 569, 73 S.W. 51. Where a right is conferred 

or obligation imposed on said court, it has Implied 

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Hon. Henry Wade, Page 3 (M-277) 

authority to exercise a broad discretion to 

accomplish the purposes intended. 11 Tex.Jur, 

565; City Nat. Hank vi Presidio County, Tex. 

Civ.App., 26 S.W. 775; Qussett v. Nueces County, 

Tex.Com.App., 235 S.W. 857; Dodeon v. Marshall, 

Tex.Civ.App., 118 s.w.w 621. 

"3. On the otherhand, a sheriff has.no 

authority to make contracts that are binding one 

the county, except where he is specially so authorized to do by statute. 11 Tex.Jur. 636; 

Germo Mfg. Co. v. Coleman County, Tex.Civ. 

184 S.W. 1063; American Disinfecting Co. v. 

App., 

Freestone County, Tex.Civ.App., 193 S.W. 440; 

Sparks v. Kaufman C.ounty, Tex.Clv.App., 194 S.W. 

605. 

'4. .Revised Statutes, ~Artlcle 2351;impoaes 

on the Commissioners' Court the duty to 'Frovide 

and keep in repair court houses, ,jails and all 

neceesary public building 8. 1 The duty thus imDOSed.is not llmlted to the furnlshlna of a bare 

building and keeping it in repa&. IE contemplates 

an Inhabitable court house; one that is ,usable for 

the purposes intended. Thi,swould include the furnishing-of heat, elevator service where neecled, 

as well as janitor aervlce.to keep it clean and 

usable. Since It Is under the duty of providing 

these conveniences, the Commissioners' Court has 

at least the Implied power and authority to contract therefor. Dodson v. Marshall. Tex.Civ.Aao. 

118 S _ W . 28 bm We think. therefore. that the" 

Commissioners' Court has authority to select, 

tract with, and ilscharge the above-mentioned 

house employees. (Emphasis added.) 

While that case dealt primsrlly with the question of 

condourt 

whether the commissioners court or the sheri,ff had the statutory, 

duty and authority to hire and fire the courthouse employees, 'yet 

'the court's opinion very clearly holds that there Is the,impLied 

power arising from the power granted to the commissioners to contract 

for janitor services, etc., to mal.ntaln an Inhabitable courthouse or 

In accord, Attorney ffeneral Opinion Numbers O-2444 

'I$%$ .i%%Ei5 (1944). 

In Attorney General Opinion Number WI-370,(1958), this 

office held that a commissioners court has no authority to delegate 

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Hon. Henry Wade, page 4’ (M-277) 

the maintenance of a countycourthouse to any Individual or firm. 

This opinion fa,iled to discuss or recognize the above’cited case 

of the Supreme Court, ‘and it Is ,our oljlnion that It Is contra to 

that case holdlng and should be overruled. 

It is our opinion that there is implied authority from 

Section 7 of Article 2351, Vernon’s Civil Statutes, to authorlte 

a commissioners court to contract with an Independent contractor 

,to maintain the courthouse and other public buildings within their 

charge. 

In addition to Article 2351, your county (Dallas) is also 

subject to Article 2351c, Vernon’s Civil Statutes, and thus the 

effect of this statute must also be considered In this opinion; the 

pertinent provisions of whloh are quoted as followst 

“Section 1. In all Counties having a population of more than five hundred thousand (500, 

000), according to the last preceding or any 

future Federal Census, a11 employees necessary to 

the repair, maintenance, and operation of all court 

houses and Criminal Court Buildings shall be uyder 

;;trtirection and control of the Commlssloners, 

. . . .A11 ‘employees, Including jail guards, 

matrons,’ elevator operators and other such employees engaged In the operation of the jails in 

such counties shall continue co be employed and 

discharged by the Sheriff ~ln the manner now provided by law,. and all employees necessary for the 

proper conduct of the jails or the safekeeping of 

the prisoners shall be subjeat to the exoluslve 

direction and control of the Sheriff of such County. 

“Sec. 2. The fact that the Court of Civil 

Appeals at San Antonio has recently held that all 

courthouse maintenance employees are subject to 

the exclusive direction and control of the Sheriff 

and may be employed and discharged only by the 

Sheriff and the further fact that in the larger 

Counties having separate Civil Courts and the 

Criminal Courts Buildings, such employees have 

been employed and discharged by’ the Commisb%;oners ’

Court. as ‘employee’s ,of t,he County. and that the 

holding of, the Court of Civil Appeals creates confusion with respect to the repair and maintenance 

of public buildings in the larger Counties, and Increases the co8.i of operation therein, oreates an 

emergency . . . 

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Hon. Henry Wade, page 5 ,(M-277) 

This statute has an interesting history. The Court of 

Civil Appeals case referred to in Section 2 is the oase of Anderson 

v. Wood, supra, and this statute was enacted while the case was on 

appeal to the Texaa Supreme Court. That court apparently did not mention 

or consider Article 23510, and it is our opinion that the statute 

was not determinative or controlling of the Issues disposed of by the 

court in its opinion. The purpose of this new statute was to provide 

the commissioners court with an optional way of carrying out its duty 

of malntalnlng the public buildings in its charge. 

We agree with your analysis of Article 23510, that this 

statute is permissive and not in confliot with Artlole 2351, being 

cumulative of the pre-exlstlng law authorizing the oommlsslqners 

and not the sheriff to employ persons to carry out the courts 

assigned functions of providing and repairing the oourthouse and 

other public buildings. 

SUMMARY ,,, 

The Commlasloners Court of Dallas County, has 

the option to expend county funds in repair, maintenance and operation of oourthouse,s, and other. 

necessary public buildings, by using its own employees as prescribed by Artlole 2351c, V.C.S., 

or by using an independent contractor as implledly 

authorized by Article 2351, V.C.S. 

Opinion WI?,370 is overruled. 

Prepared by James C. MoCoy 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

Kerns Taylor, Co-Chairman 

Alfred Walker 

Harold Kennedy 

Ralph Rash 

Nell Wllllams 

A. J. CARUBBI, JR. 

Executive Assistant 

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