**AUS ’** **FIN. T** **’ EXAS**  **%iJ711 CRAWFORD**  **c. MARTlN**  **#x-row o**  September~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 statedmatter. 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 ita 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:

-1340-. -

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 -wasconsidered 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

-1341"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. .RevisedStatutes,~Artlcle2351;impoaes on the Commissioners' Court the duty to 'Frovide and keep in repair court houses, ,jails and all neceesary public building8.1 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 ,usablefor 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 ofcondourt

whether the commissioners court or the sheri,ff had the statutory, duty and authority to hire and fire the courthouse employees, 'yet 'thecourt'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



### -1342-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, ‘andit Is ,ouroljlnionthat 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 ,tomaintain 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~lnthe 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

,oft,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.iof operation therein, oreates an emergency . . .

- 1343 -

### Hon. HenryWade,page 5 ,(M-277)



### This statutehas an interesting history. The Courtof CivilAppealscase referredto in Section2 is the oase of Anderson v. Wood, supra,and this statutewas enactedwhile the casewas on appealto the Texaa SupremeCourt. That courtapparentlydid not mention or considerArticle23510,and 

### it is our opinionthat the statute was not determinativeor controllingof the Issuesdisposedof by the court in its opinion. The purposeof thisnew statutewas to provide the commissionerscourtwith an optionalway of carryingout itsduty ofmalntalnlngthe publicbuildingsin its charge.

We agreewith your analysisof Article 23510,that this statuteis permissiveand not in confliotwith Artlole2351,being cumulativeof 

### the pre-exlstlnglaw authorizingthe oommlsslqners and not the sheriffto employpersonsto carryout the courts assignedfunctionsof providingand repairingthe oourthouseand otherpublicbuildings.
SUMMARY ,,, The Commlasloners Court of DallasCounty,has the optionto expend countyfunds in repair,maintenanceand operationof oourthouse,s, and other. necessarypublicbuildings,by using its own employeesas prescribedby Artlole 2351c,V.C.S., or by using an independentcontractoras implledly authorizedby Article 2351,V.C.S. 

### OpinionWI?,370

is overruled.

Preparedby James C. MoCoy AssistantAttorneyGeneral
APPROVED: OPINIONCOMMITTEE HawthornePhillips,Chairman KernsTaylor,Co-Chairman AlfredWalker HaroldKennedy RalphRash NellWllllams

A. J. CARUBBI,JR. ExecutiveAssistant

-1344 -