Mr. JeffMay ATTORNEY GENERAL OF TEXAS GREG ABBOTT

May 5,2011

Opinion No. GA-0857 Collin County Auditor 2300 Bloomdale Road, Suite 3100 McKinney, Texas 75071 Re: Authority ofa commissioners court withregard to working hours, overtime and compensatory time, and timekeeping by county employees (RQ-0930-GA)
Dear Mr. May: You ask six questions, including subparts, about the authority of a county commissioners courtunder section 157.021 ofthe Local Government Code. I You informus that the Collin County Commissioners Court has adopted a 40-hour workweek for all county employees. See Request Letter at 2. You also tell us about instances in which elected officers in the county have for various reasons granted a county employee a day off or permitted an employee leave. See id. These instances resulted in the employee not accruing a total of40hours worked. See id. at 3. You state thatissueshave arisenbetweenthe commissioners courtandtheelectedofficers aboutwhetherthese employees should be paid for the 40-hour week. See id. Subsection 157.021(a) provides that "[i]n a county with a population of 355,0002 or more, the commissioners court may adopt and enforce uniform rules on the hours ofwork ofdepartment heads, assistants, deputies, and other employees whose compensation is set or approved by the court." TEX. Loc. GOy'T CODE ANN. § 157.021(a) (West 2008). Under subsection 157.021(b), [t]he commissioners court of any county may adopt and enforce uniform rules on overtime and compensatory time for department heads, assistants, deputies, and otheremployees whosecompensation is set or approved by the commissioners court. The rules may: (1) prohibit unbudgeted overtime, except when the commissioners court or an elected county or district officer declares an emergency; and

ISee Letter from Mr. JeffMay, Collin CountyAuditor, to Honorable GregAbbott, Attorney General ofTexas at 1-2 (Nov. 10,2010), https:iiwww.oag.state.tx.usiopin/index_rq.shtml ("RequestLetter"). 2The 2010population ofCollin County, Texas is 782,341. See U. S. Census Bureau, U.S. Dept. ofCommerce, 2010 Census ofPopulation: Texas, http://201O.census.gov/20IOcensus/dataiindex.php.Mr. JeffMay

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(2) requirethatemergencyovertimebereportedtothecounty auditor and the commissioners court. [d. § 157.021(b). As the governing body of a county, a commissioners court conducts the business of the county. TEX. CONST. art V, § lS(b); see also Tex. Att'y Gen. Op. No. JC-0214 (2000) at 2. A commissioners courtis expressly authorizedto set the compensationfor county employees. TEX. Loc. GOV'T CODE ANN. § 152.011 (West 200S). Additionally, a commissioners court is charged with the legislative power ofbudget making, which involves the discretionary authority of setting thebudgetpriorities and allocating county funds to the county's purposes. See Tex. Att'yGen. Op. No. JC-0214 (2000) at 2. At the same time, the constitution and statutes delegate to independent, elected officers a sphere of authority, which "the Commissioners Court may not interfere or usurp." Pritchard & Abbottv. McKenna, 350 S.W.2d 333, 335 (Tex. 1961). This sphere ofauthority has been described as covering only an elected officer's core duties under the constitution and statutes. See Griffin v. Birkman, 266 S.w.3d lS9, 197 (Tex. App.-Austin 200S, pet. denied) (citing Comm'rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, SO (Tex. 1997)). This office has said that within this sphere of authority is the power to "decide how to use the employees who work in his or her office to accomplish the officer's constitutional and statutory duties." Tex. Att'y Gen. Op. No. JC-0239 (2000) at 4. This office has also opined that an elected officer may, among other things, "set the officer's employees' work schedule, and

... assign employees as the officer sees fit to accomplish the duties ofhis" or her office. Tex. Att'y Gen. Op. Nos. GA-0661 (200S) at 2; see also JC-0214 (2000) at 5. This officehas also opinedthat an elected officer's sphere ofauthorityencompasses the power "to dismiss his or her employees for all or part of a day for any reason" and "to authorize employees to be paid for the time they were unable to work because of an office c1osure.,,3 Tex. Att'y Gen. Op. Nos. JC-0239 (2000) at 7, JC-0131 (1999) at 3; see also Tex. Att'y Gen. Op. Nos. GA-077S (2010) at 2, GA-0661 (200S) at 2-3. An independent, elected officer's sphere of authority with respect to utilizing his or her employees in a given workweek collides with a commissioners court's authority in section 157.021 over the hours ofwork ofcounty employees during an established standard workweek. Mindful of this tension, we consider your specific questions. 

### I. Authorityofacommissioners courtto withholdpaymentofpartial

### salaries andbenefits You first ask whether

3Allowing employees time off must serve a public purpose within Texas Constitution article III, section 52, which provides that the Legislature shall have no power to authorize any county to grant public funds to any individual. See TEX. CONST. art. III, § 52(a). Whether a particular office closure does so must be determined in the first instance by the officer, whose decision is subject tojudicial review. See Tex. Att'y Gen. Op. No. GA-0322 (2005) at 4.Mr. JeffMay

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Local Government Code section 157.021(a) allow[s] the Commissioners Courtto withholdthe paymentofpartial salaries and benefits offull-time Countyemployees whose compensationis setor approvedbythe CommissionersCourt, andwho, in aparticularweek, may not meet a forty-hour work week as set by an order of the Commissioners Court during each budget[.] Request Letter at 1. "Constitutional and statutory provisions conferring authority upon the Commissioners Court shouldbebroadly and liberally construed to ascertain the scope ofauthority granted either expressly orby necessary implication." Griffin, 266 S.W.3d at 194 (citing Canales v. Laughlin, 214 S.W.2d 451,453 (Tex. 1945)). And commissioners courts have broad discretion in exercising expressly granted powers. Canales, 214 S.W.2d at 453. Subsect.ion 157.021(a) expresslygrants a commissioners courtincounties with therequisite population authority to adopt uniform rules on the "hours of work" of the specified class of employees. TEX. Loc. GOV'T CODE ANN. § 157.021(a) (West 200S). The phrase "hours ofwork" is undefinedbythe statute, butconstrued broadlythe phraseencompasses the authority to establish the hours in a standard county workweek. Subsection 157.021(a) also expressly authorizes a commissioners court to enforce its rules pertaining to hours of work. [d. § 157.021(a). Within its express authority to enforce the hours of work of county employees, a commissioners court has broad discretion to determine how to ensure compliance with its rules and impose appropriate consequences for lack ofcompliance. See Canales, 214 S.W.2d at 453 (recognizingcommissioners court'sbroad discretion to act within its expressly granted powers). We believe such discretion likely includes authority to withhold partial salaries and benefits of full-time employees whose compensation is set or approved by a commissioners court when the employee may not in a given week satisfy the hours-of-work standard. See Agan, 940 S.W.2d at 79-S0 (recognizing that under article V, section IS, Texas Constitution, discretionary matters are for the commissioners court to resolve in the first instance, subject tojudicial review). 

### C.!, Tex. Att'y Gen. Op. No. JC-0239 (2000) at 5 (recognizing that a commissioners court has implied authority underLocal Government Code section 152.011, which authorizes a commissioners court to set the compensation ofcounty employees, to "premis[e] full salary and benefits upon a forty-hour workweek"). Subsection 157.021(a) thus allows a commissioners court of a populous county to limit to a degree an officer's authority to establish a conflicting hourly workweek for his orher employees who are within the specified class of employees. C.f, Tex. Att'y Gen. Op. No. JC-0239 (2000) at 3 ("[A]bsent a statute to the contrary, a commissioners court may not interfere with a county official's authority to set the hours his or her office will be open to the public."). Yet, subsection 157.021(a) does not abrogate the elected officer's obligation to fulfill his or her constitutional and statutory duties. See Pritchard & Abbott, 350 S.W.2d at 335 (recognizing constitutional and statutorybasisfor an electedofficer's sphereofauthoritywith which a commissioners courtmaynot interfere or usurp). Despite a commissioners court's authority under subsection 157.021(a), anMr. JeffMay

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elected officer must still have discretion and latitude to perform his or her required duties with the resources, including employees, ofhis or her office. See Tex. Att'y Gen. Op. No. GA-0778 (2010) at 3-4 (concluding that a commissioners court's express authority in Local Government Code subsection 1l1.01O(d) to amend the budget is circumscribed by an elected officer's sphere of authority). To give effect to subsection 157.021(a) and to preserve an officer's sphere ofauthority, we conclude that a commissioners court may exercise its authority under subsection 157.021(a) so long as the adoption or enforcement ofrules regarding county hours ofwork does not prevent an elected officer from fulfilling his or her required, or core, functions. We cannot, however, speculate on all instances in which a commISSIOners court's withholding ofan employee'spartial salaryandbenefits wouldimpermissiblyintrudeon an officer's operation of the office in the fulfillment of his or her core duties. See Tex. Att'y Gen. Op. No. GA-07S1 (2009) at 1("This office does not resolve questions offact in the opinion process."). The two instances that youpresent'as examples involve an officer's authority andresponsibility overthe safety of his or her employees as well as authority to reward and motivate his or her employees-bothaspects webelieve arefundamental in an officer'smanagement ofhis orheroffice resources in the fulfillment ofthe officer's core duties. These circumstances could be instances in whichthe withholding ofapartial salary and benefitsmaypreventthe elected officerfrom fulfilling his or her constitutional or statutory functions. See Tex. Att'y Gen. Op. No. GA-0778 (2010) at 4 ("While a commissioners court may amend the budget in midyear to make a transfer offunds that would result in the reduction ofthe salary line item for county employee's compensat[ion]

... , it may not adopt such an amendment to recoup payment to employees for the time period [they were dismissed], because such a change would interfere with an electedofficer's authority to manage his or her office and supervise the employees."); see also Tex. Att'y Gen. Op. No. JC-0239 (2000) at 4 ("A commissioners courtthat adopts apolicyto keep employees from following their supervising countyofficial'sinstructions toleavemayunlawfullyinterfereinthe official's sphere ofauthority."). 

### II. Authority ofa commissioners court regarding overtime and compensatory time You next quote Local Government Code subsection IS7.021(b), and ask

a. What are examples of an emergency that require[] payment of overtime compensation? For example, is ajury trial that goes into late hours an emergency? Who determines if an emergency exists? b. Does the CommissionersCourthave any discretion overpayment of overtime or compensatory time to an employee when an elected county or district officer declares an emergency under Local Government [Code] section IS7.021(b)(1)? Request Letter at 1. Again, we cannot speculate on all possible factual circumstances that might constitute an emergency, butinstead address only the legal issues presentedin these questions. See Tex. Att'y Gen. Op. No. GA-07S1 (2009) at 1 ("This office does notresolve questions offact inthe opinion process.").Mr. JeffMay

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Under the plain language ofsubsection 157.021(b)(I), in answer to your first sub-question, either a commissioners court or an elected county or district officer is authorized to declare an emergency.4 TEX. Loc. GOy'T CODEANN. § 157.021(b) (West 2008); see Phillips v. Bramlett, 288 S.W.3d 876, 880 (Tex. 2009) (stating that to discern legislative intent, courts look to the statute's plainlanguage). Subsection 157.021(b) authorizes acommissionerscourtofanycountyto adoptand enforce uniform rules on overtime and compensatory time for the specified set ofemployees. TEX. Loc.GOy'TCODEANN. § 157.021(b) (West2008). Inauthorizing acommissioners courtto prohibit unbudgeted overtime, subsection 157.021(b)(I) then limits that authority when a listed officer declares an emergency. !d. Thus, by the terms ofthe subsection, when there is such a declared emergency, a commissioners court's rules cannot prohibit unbudgeted overtime. [d. Based on the express limitationin subsection 157.021(b)(I), we conclude, in answertoyour second sub-question, that a commissioners court is without discretion to withhold payment ofunbudgeted overtime. III. Authorityofa commissioners courtto requirean officerto accommodateovertimeand compensatory time in an existing budget In your third question, you ask [i]f a County employee in the office of an elected county or district officer works unbudgeted overtime orcompensatorytime, can those costs be charged against the official's budget that is approved annually by the Commissioners Court? Does the Commissioners Court have the authority to require the elected county or district officer [to] find funds in his or her department budget to fund the overtime or compensatory time? Request Letter at 2. You rephrase this question as an inquiry about a commissioners court's "authority to approve a budget amendment which effectively reduces one or more of the other allowances containedinthe

...official'sbudget," andwhether "suchpayments [must] bemadefrom accounts in the general county budget that are independent ofthe allowances for the elected

... official." Request Letter at 7. A recent opinion from this office addresses this characterization of your question. See generally Tex. Att'y Gen. Op. No. GA-0778 (2010). InOpinionGA-0778, this office considered section 111.010oftheLocal Government Code, which authorizes a commissioners court in a county with a population of less than 225,000 to "amend the budget to transfer an amount budgeted for one item to another budgeted item without authorizing an emergency expenditure." TEX. Loc. GOy'T CODE ANN. § 111.01O(d) (West 2008);

'You do notexpressly ask about a mechanismfor reviewofan officer's determination ofan emergency. Other than observing that a county auditor has oversight authority over a county's books, we do not address the question. See generally TEx. Lac. GOV'T CODE ANN. §§ 112.006(a) (West 2008) (providing "[t]he county auditor has general oversight ofthe books and records ofa county"), .006(b) ("The county auditor shall see to the strict enforcement ofthe law governing county finances.").

### Mr. JeffMay

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see

### Tex. Att'yGen. Op. No. GA-0778 (2010) at 3 (citing subsection 111.01O(d), Local Government Code). This office stated that "as a general matter, the commissioners court has authority to make a budget transfer that would result in the reduction ofthe salary line item allocating compensation to a county officer's employees." Id. 

### at 3. This office also concluded that a county commissioners court "may not, by transferring funds from an elected county officer's budget, thereby prevent the officer from performinghis or her required duties." Id. 

### at 3-4 (quoting Tex. Att'y Gen. Op. No. GA-0037 (2003) at 5). To the extent a commissioners court similarly seeks to amend a county budget to recoup salary payments from employees for the time period they were dismissed by an officer's declaring an emergency,5 we believe such an action may prevent the officer from performing his orher required duties. See 

### Tex. Att'yGen. Op. No. GA-0778 (2010) at 3-4;seealso 

### Tex. Att'y Gen. Op. No. GA-0037 (2003) at 4 ("Whether [such] a transfer is permissible is a question offact that the commissioners court must determine in the first instance."). With respect to your query about use ofthe allowances within an elected officer's budget, this office has concluded in numerous opinions that "[a]lthough a county commissioners court sets a county officer's budget, the officer may determine how best to use the funds to accomplish the officer's constitutional and statutory duties." Tex. Att'y Gen. Op. Nos. GA-0322 (2005) at 2-3; JC-0214 (2000) at 5 (stating that a commissioners courtmay not "substitute itsjudgment for that of another constitutional officer in determining how to deploy the resources placed at his disposal"). Based on the principle that an officer is in control ofthe assets accorded to his or her office, we believe acounty commissioners court may not, without the officer's consent, deduct the emergency overtime from an officer's budgeted allowances. "Ifa county commissioners court infers from a county officer's office closure or allocation ofcounty resources that the elected officer does notrequire all ofthe full-time employees assigneq to that office, the commissioners court's remedy is to apply its budgetary authority to reallocate county resources,"in the future. Tex. Att'y Gen. Op. No. JC-0239 (2000) at 5. 

### IV. Authority ofa commissioners court to mandate method oftimekeeping Finally, you inquire whether a commissioners court may "mandate the method of timekeeping usedbythe elected officers' employees whose compensationis set or approved" by the commissioners court. RequestLetterat2. As wenotedpreviously, acommissioners courthas broad discretion in exercising expressly granted powers. Id. 

### Within its express authority to enforce rules governing the hours ofwork ofcounty employees, a commissioners court has broad discretion to determine how to measure compliance with the rule. SeeAgan, 

### 940 S.W.2d at 79-80 (recognizing that under article V, 

### section 18, Texas Constitution, discretionary matters are for a commissioners court to resolve in the first instance, subject tojudicial review). We believe such discretion likely includes authority to mandate the method oftimekeeping used by the elected officers' employees whose compensation is set or approved by a commissioners court.

5As you inquire about the payment ofunbudgeted overtime, we presume the overtime was incurred due to an emergency declaredpursuantto subsection lS7.021(b)(l). TEx. Loc. GOV'TCODEANN. § lS7.021(b)(1) (West2008).Mr. JeffMay

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### SUMMARY A county commissioners court exercising its authority under subsection IS7.021(a), Local Government Code, to establishby rule a 40-hour workweek for county employees likely may withhold partial salaries and benefits ofcounty employees working less than the required hours so long as doing so does not prevent an independent, elected officer from fulfilling his or her core functions. Under subsection IS7.021(b)(1), Local Government Code, when an emergencyhas been declared by a county or district officer, a county commissioners court is without discretion to withhold the payment ofunbudgeted overtime. Acountycommissioners courtmaybeprecludedfrom seeking to recoup salary payments from employees for the time period the employees were dismissed by the officer's declaring an emergency under subsection 157.021(b)(1), Local Government Code, ifsuch an action prevents the elected officer from performing his or her core duties. Moreover, because an electedofficeris incontrol ofthe assets accorded to his or her office, we believe a county commissioners court may not, without the officer's consent, deduct the emergency overtime from an officer's budgeted allowances. A county commissioners court exercising its authority under Local GovernmentCodesubsection 157.021(a) toestablish a40-hour workweeklikelyhas authorityto mandate the methodoftimekeeping used by county employees.

DANIEL T. HODGE First Assistant Attorney General DAVID J. SCHENCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chair, Opinion Committee Charlotte M. Harper Very truly yours,

Assistant Attorney General, Opinion Committee