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### THE ATTORNEY GENERAL OF TEXAS

May 25, 1988

Honorable Michael J.Guarino opinion No. JM-910 Criminal District Attorney 405 County Courthouse Re: Whether acommissioners Galveston, Texas 77550 court isauthorized to grant vacation and sick leave benefits to elected and appointed county officials, and related questions (RQ-1178)

DearMr. Guarino:

You ask a series ofquestions regarding the authority of acommissioners court togrant vacation and sick leave benefits toboth elected and appointed county officials and
topay such officials forthe unused portions thereof. Because resolution of the issues raised byyour questions rests upon anunderstanding ofarather elaborate sequence of facts,we set those facts out first indetail.

YOU inform us that the present Galveston County Personnel Policies Manual, which was duly adopted by the commissioners court in 1983,does not authorize expressly the accrual ofvacation and sick leave benefits for elected appointed i&sible county and precinct officials, with the

exception of the county commissioners, who expressly are includedwith regular employees inthe present 1983manual. Previous personnel policy manuals also failed to authorize expressly the accrual of such benefits for elected and appointed officials. Youhave included copies of the 1969, the 1977, and the 1983 manuals for our inspection.
Despite the absence of unambiguous authorization for accrual ofbenefits, however, inapproximately January 1978, P the employment records of all elected and appointed

officials inGalveston County began reflecting accumulated sick leave and vacation benefits that were calculated and entered into the records by the Galveston County Auditor then in office. You state that the reason the County Auditor began such apractice isunclear: you indicate that

P. 4519Honorable Michael J. Guarino -Page 2 (JM-910) .

accrual of these benefits was never expressly authorized by theGalveston County Commissioners Court. The practice was terminated on March 31, 1985,when the succeeding County --. Auditor deleted the benefits fromthe payroll records of all elected and appointed Galveston County officials.

You inform us that between January 1978 andMarch 31, 1985, eleven elected and appointed county officers retired, died, orresigned andwere paid (ortheir estates were paid) for their accumulated vacation and/or sick leave, as reflected by their payroll records, up to the maximum allowed under the Personnel Policies Manual adopted by the county. Two additional elected officers left office after March 31, 1985, andwere paid for such accrued benefits by thepresent county auditor. YOU include a list of the titles of the 13officers who received such benefits and the amounts of compensation that each received. Five elected officers left office during this period andwere not paid fortheir accrued benefits. We now turn to your first question.

First you ask:

In light of thehistorical development of this issue, does the Commissioners' Court OF Galveston County have the authority to grant vacation and sick leave benefits to elected and appointed officials payable upon their vacating their present public offices?

Subchapter B of chapter 152of the Local Government Code, formerly codified as article 3912k, V.T.C.S., sets forth the relevant provisions regarding the authority of the commissioners court to set salaries and compensation for county officers and employees. Section 152.011 of the Local Government Code provides: "The commissioners court of a county shall set the amount of the compensation, office and and all travel **emenses.** other allowances forcounty and precinct officers and emulovees who arexiii wholly from countv funds." (Emphasis added.) Subsection 152.013(a) of the Local Government Code sets forth the following:

Each year the commissioners court shall set the salary, expenses, and other allowances of elected countv or nrecinct officers. The commissioners court shall set the items at a regular meeting of the court during the regular budget hearing and adoption proceedings. (Emphasis added.)

p. 4520Honorable Michael J. Guarino -Page 3 (JM-910)

This office already has concluded that sick leave benefits constitute "compensation

. . .and all other

- allowances" for purposes of section 152.011 of the Local

Government Code, Attorney General Opinions H-860, H-797 (1976), as does vacation entitlement, Opinion MW-136 (1980). Attorney General Entitlement toholidays has also been held tobe a formof ncompensation.l' Attorney General Opinion MW-438 (1982).

InAttorney General Opinion H-860 (1976),this office

was askedwhether elected county andprecinct officials may be compensated forunused sick leave. A county commissioners court had provided by resolution that elected and appointed officers and employees would accrue sick leave, and that persons whose employment is terminated were entitled to compensation for unused sick leave specified number ofup to a ofdays. The opinion declared that the commissioners' resolution was authorized prior to the effective date of article 3912k,V.T.C.S., article by now-repealed

2372h-1, V.T.C.S., as to county and precinct employees: after the enactment of article 3912k, the commissioners' resolution was authorized by that statute. See Attorney General Opinion H-797 (1976) (County may compensate emolovees forunused sick leave.)
Regarding officers, however, the opinion noted that, before the effective date ofarticle 3912k, no statute furnished specific statutory authority for the accrual of sick leave by county andprecinct officers. The opinion went on to conclude, though, that three statutes then in effect impliedly offered such authority:

In, our opinion, these statutes, authorizing the commissioners court to fix salaries of county and precinct officials,

were sufficient authority for the **commissioners** court to provide for the accrual of sick leaveby those officials, and to compensate them fortheunused portion of any such sick leave. In Attorney General Opinion M-1252 (1972),this Office found that compensation for unused vacation time constitutes payment of "salary."

Attorney General Opinion H-860, m atp.2. The opinion concluded thediscussion of this issueby stating that the commissioners court, both before and after the effective date of article 3912k,was authorized toprovide sick leave forthevarious county and precinct officials and that the commissioners courtwas then authorized to compensate those

P. 4521Honorable Michael J. Guarino -Page 4 (JM-910)

officials forthe unused portion of any sick leave earned during that period.

On the basis of Attorney General Opinions MW-438 (1982);H-1142, H-1113 (1978);H-860, H-797 (1976),as well
as theplain language of sections 152.011 and 152.013 of the Local Government Code, we conclude that the commissioners court ofGalveston County isauthorized to grant to those county and precinct officers and employees whose "compensation" may be setby the court vacation and sick leavebenefits and to compensate recipients forthe unused leavebenefits. but eLocal Gov't Code, 5152.017 (Listof offices towhich sect:& 152.011 does not apply.)

Your question isgeneral inscope: although you ask about "county and precinct officers," we limit our discussion to those officers that were previously compensated forunused leave. Thegeneral rules of law that we enunciate regarding those officers who have received compensation apply also to all other county and precinct officers and employees whose "compensation" may be set or supplemented by the commissioners court.

The list of officers who received compensation includes

a county court judge, adistrict attorney, and a purchasing agent. Although section 152.017 of the Local Government Code specifically excludes the district attorney and county court judge fromthe reach of subchapter BofChapter 152, the statutes creating these offices provide that the commissioners courtmay set or supplement the salaries for these offices. m Gov't Code, 525.0862. Compensation for

apurchasing agent isgoverned by section 262.011(k) of the Local Government Code,which provides that the board that is empowered to appoint him isempowered also to set his compensaton. The commissioners court then has aministerial duty to approve such compensation set. see Attorney General Opinion M-708 (1970).

You next ask:

In light of thehistorical development of this issue, isthe Commissioners' Court of Galveston County presently required topay to those elected and appointed county officials whose employment records reflect accumulatedvacation and sick leave time for such benefits upon their leaving their present public offices?

p. 4522Honorable Michael J. Guarino -Page 5 (JM-910)

Inanswer toyour first question, we declared that chapter 152 of the Local Government Code authorizes a
- commissioners court to grant vacation and sick leave

benefits and to compensate recipients for the unused portions thereof to those county andprecinct officers and employees whose "compensation" maybe setby the court. On thebasis of the information thatyou have submitted to us,
we cannot state that the commissioners court of Galveston County isrequired to compensate those elected and appointed county and precinct officers whose employment records reflect such accumulated benefits, because we have no evidence that the commissioners court ever properly adopted any resolution soproviding. YOU stated in your letter requesting our opinion that neither thepresent Personnel Policies Manual nor any of itspredecessor manuals expressly authorize the accrual ofvacation and sick leave benefits to county andprecinct officers, other than to the commissioners themselves. See alsoAttorney General Opinions JM-599, JM-430 (1986);H-1142 (1978):H-860, H-797 (1976) (compensation policies set inpersonnel manuals adopted by resolution by the commissioners courts oradopted inresolutions themselves). Nothing that youhave submitted inconnection with your opinion request purports to be such an authorizing resolution. The Personnel Manuals thatyou have submitted ,withyour request reach employees and commissioners; they do not reach all elected and appointed county and precinct officers. Section 402.042 of theGovernment Code does not empower this office to make findings of factwhile in the process of issuing opinions. We are unable to say, consequently, whether the commissioners court has in fact authorized such apolicy.1

1. You suggest that, since the county budgeted and compensated certain specified officers for the unused portion of their accrued benefits between 1978 and 1985, it isnow estopped from claiming that it is entitled to reimbursement inthe event that'it isdetermined that the commissioners court did not authorize properly the vacation and sick leave benefits. The principle of estoppel ordinarily isnot applicable to the state or to a political subdivision while it isacting in aid of the government's sovereign powers. See, e.s., T &RAssociates Inc.v. Citv ofAmarillo, 688 S.W.Zd 622 (Tex.App. -Amarillo 1985, pet. ref'd n.r.e.): Davisv. CitV of Abilene, 250 S.W.2d 685 (Tex.Civ.App. -Eastland 1952,writ ref'd). The basis of estoppel isdeception, and in itsabsence there canbe no (Footnote Continued)

P. 4523Honorable Michael J. Guarino -Page 6 (JM-910)

You next ask:

Ifthe Commissioners* Court isnot required to pay these benefits, isthe Commissioners' Court legally obligated to attempt recovery of those funds previously paid to the thirteen elected and appointed officials enumerated above? Inaddition, isthere a viable distinction between the three retired County Commissioners who 

### were arguably included inthe Personnel Policies Manual and the Purchasing Agent whose request was specifically approved and the other elected and appointed officials?

If thebenefits aboutwhich you inquirewere granted without commissioners court approval, such payments would constitute an improper grant ofpublic money inviolation of article III, section 52, of the Texas Constitution. In Attorney General Opinion H-797 (1976),this office was asked about the propriety of compensating employees for unused sick leave. Therein we declared:

We do not believe that there are any constitutional obstacles to the adoption of such apolicy. InAttorney General Opinion H-51 (1973),we held that a county **may** not authorize thepayment of funds to the survivors ofadeceased county employee if the employee had no right to the funds at the time ofhis death, because such payment would constitute an impermissible gift orgrant of public moneys under article 3, sections 51, 52and 53of the Texas Constitution. But the commissioners court **was** permitted, without violating the constitutional prohibition, to compensate the **survivors** for the decedent's vacation time and any other compensation

(Footnote Continued) equitable estoppel.. Bocanecra v.Aetna Life Insurance Co., 605 S.W.2d 848 (Tex.1980); Barfield v. Howard M. Smith Co. ofAmarillo, 426 S.W.2d 834 (Tex.1968). On the basis of the information thatyou have submitted inconnection with your opinion request, we conclude that the requisite elements for the invocation ofestoppel are not present. Concord Oil Co. v.Alto Oil & Gas %-D 387 S.W:2d 635 (Tex. 1965); Gulbenkian v. Penn, 252 S.W.ih 929 (Tex. 1952). 7

P. 4524. . Honorable Michael J.Guarino -Page 7 (JM-910)

C previously earned by the employee. Since your question contemplates that at the time of his retirement the employee would be compensated only for sick leave previously earned, there would appear to be constitutional inhibition affecting tE implementation of such apolicy. Thus, it is

our opinion that acountymay compensate its retiring employees for aportion of their sick leave accrued but not taken.

Analogously, we conclude that anypayments forbenefits that
weremadewithout the authority of the commissioners court would also constitute an impermissible grant of public funds. The county would be authorized to seek reimbursement but could exercise reasonable discretion as towhether todo
so in aparticular case. Such factors as the amount of funds to be reimbursed, the ease of collection, and the legal and other costs incident to collection might be considered. SeeAttorney General Opinion MW-93 (1979).

We also understand you to askwhether the three retired county commissioners and the purchasing agent occupy a status other than the one occupied by the other elected and appointed county and precinct officers. The Galveston County commissioners appear to have granted themselves vacation and sick leavebenefits identical to those granted to county employees by the commissioners court#s adoption of the Personnel Policies Manual. There isno question, then, that the conferral ofbenefits isproper at least as to the commissioners themselves. Thepurchasing agent also appears properly to have been conferred vacation and **sick** leave benefits: you have includedwith your request for anopinion

acopy ofa signed affidavit from theboard authorized to appoint the purchasing agent pursuant to now-repealed article 1580, V.T.C.S., specifically requesting that the purchasing agent receive suchbenefits and a copy of the commissioners court resolution approving payment to the purchasing agentwho retired in 1984. See Attorney General Opinion **M-708** (1970).

You next ask:

If the Commissioners' Court of Galveston County, Texas, adopts a policy to extend vacation and sick leavebenefits to those elected and appointed officials who showed such benefits on their employment records in March, 1985, does the Commissioners‘ Court have to extend such benefits to all elected

P. **4525**Honorable Michael J. Guarino -Page 8 (JW-910)

and appointed officials now and in the future?

Section 152.011 of the Local Government Code authorizes the commissioners court to set "compensation

. . .and all other allowances" for county and precinct officers and employees who are paid wholly from county funds. The commissioners court has discretion as to what kind of benefits it chooses to offer the occupants of particular offices. Just so long as the differences between officers and/or employees isnot sounreasonable as to constitute an abuse 

### ofdiscretion, we seeno reason whybenefits conferred may notvary, depending upon factors that the commissioners court properly may consider.

Inanswer to the second part ofyour question, the Texas Supreme Court has ruled that, so long asno vested right is impaired, aduly-enacted statute or resolution that
serves to alter orreduce a benefit heretofore granted is permissible. In the leading case of. Citv f Dallas Trammell, 101 S.W.2d 1009 (Tex.1937), the Texas Suprez;! Court specifically upheld the constitutionality of statute, the effect ofwhich was to reduce the pensioz benefits ofapensioner. The court cast the issue in the following way:

Asweview the matter, the true question involved is this: Does the employee, after retirement, have a vested right to participate inthepension fund to the extent of the full amount of the monthly installments granted tohim at retirement; that is; does hehave avested right in future installments which cannot be affected by subsequent legislation tending to dimish the amount of such installments? Puttins the matter in somewhat different lancuaoe, wemay properly inquire ifthe right which the employee has toparticipate inthepension fund, acquired byvirtue ofhis contract, imposes upon the city and the Legislature of the state (the
source of the city's power and authority ina matter of this kind) the inviolable duty of maintaining a pension fund of such proportions as will guarantee the right to defendant in error and others having equal rights with him toparticipate to the full extent of the monthly amounts previously awarded to them at the time the right to participate accrued? Inotherwords, is the

P. 4526Honorable Michael J. Guarino -Page 9 (JM-910)

Legislature without constitutional power to repeal the lawsuponwhich thepension system of the City of Dallas isbased, or to modify their provisions insuch way as to diminish thepensions payable to thosewho have become qualified to receive them so long as any one who has been granted apension shall live?

101 S.W.2d 1009, 1011.

The court concluded that

the rule that the right of apensioner to receive monthly payments from the pension fundafter retirement from service, or after his right to participate in the fund has accrued, ispredicated upon the anticipated continuance of existing laws, and is subordinate to the right of the Legislature to abolish thepension system, or diminish the accrued benefits of pensioners thereunder, isundoubtedly the sound rule to be adopted.

101 S.W.2d 1009,1013. The Texas Supreme Court then declared that a right, to be within the protection of the constitution, must be avested right or something more than

amere expectancy based upon ananticipated continuance of

anexisting law: inthis instance, the court concluded that the pensioners' rights weremere "expectancies.11 101 S.W.2d 1009, 1014-16. && alsoWoods v. Reillv 218 S.W.2d 437 (Tex. 1949);Hoard ofManaaers of theHarris Countv Hosoital District v. Pension Board of the Pension System for the City ofHouston, 449 S.W.Zd 33 (Tex.1969) (citingthe Citv of Dallasv. Trammel1 casewith approval); Devon v. Citv of San Antonio, 443 S.W.2d 598 (Tex.Civ.App. -Waco 1969, writ ref'd); Attorney General Letter Advisory No. 5 (1973). Accordingly, so long asnovested rights are impaired, we conclude that the commissioners court is not required to continue granting suchbenefits indefinitely inthe future.
Finally you ask:

If the Commissioners' Court of Galveston County, Texas, may adopt apolicy to extend vacation and sick leave benefits to all elected and appointed officials (or alternatively to those officials who show such benefits on their employment records in March, 1985), are such officials required to

p. 4527Honorable Michael J.Guarino -Page 10 (JM-910)

abide by thevacation and sick leave benefits limitations andprocedures presented in the Galveston County Personnel Policies Manual? --.

You do not specify just what "limitations and procedures" are set forth inthemanual withwhich you think county and precinct officers must comply. Thus, we must address your question in general terms. While this office consistently has said that acommissioners court possesses the authority to set county and precinct officers' and employees' lVcompensation~* pursuant to section 152.011 of the Local Government Code and its predecessor statutes, see.e.a., Attorney General Opinions JR-430 (1986); MW-438 (1982);Mh'w-268(1980);H-1142,H-1113 (1978);H-860, H-797 (1976)rthis office also has held that the authority of the commissioners court over the operation of other county and precinct officers is limited. &=g Attorney General Opinions JM-440 (1986); JR-182 (1984). In those opinions, we concluded that,while the commissioners court is empowered to set ~*compensation,** including salaries, vacation and sick leave benefits, and holidays for county and precinct officers and employees, the court does not have the authority to set office hours for those officers. As a general rule, a county or precinct officer would have to comply with any reasonable requirements, so long as those requirements do not interfere with theproper operation of the other constitutional or statutory county or precinct offices.

SUMMARY

1.The commissioners court of Galveston County is authorized to grant vacation and sick leave benefits to elected and appointed county and precinct officers and employees who arepaidwholly fromcounty funds.

2. Whether the commissioners court of Galveston County presently isrequired to pay to those elected and appointed county and precinct officers whose employment records reflect accumulated vacation and sick leave benefits when they leave their present public offices isaquestion of fact.

3. Ifthe award of benefits was without the approval of the commissioners court, the court could seek tobe reimbursed by those who received such compensation improperly. The three retired county commissioners, who -,

?

P. 4528Honorable Michael J. Guarino -Page 11 (JM-910)

: .

- were includedwith other county employees in the county Personnel Policies Manual, and the Purchasing Agent, whose conferral ofbenefits

was directed before his retirement by the board that was responsible for his appointment, are entitled to accrual and receipt of such benefits.

4. Ifthe commissioners court ofGalveston County adopts apolicy to extend vacation and sick leave benefits to all elected and appointed county andprecinct officers whose employment records reflected the accrual of such benefits in March 1985, the commissioners court does nothave to extend suchbenefits to all elected and appointed county andprecinct officers. As long as no vested right is impaired, the commissioners court may, by resolution adopted in the future, reduce or alter thebenefits that are presently granted.

5.Those elected and appointed county and precinct officers to whomvacation and sick leave benefits are extended are not relieved of the responsibility to comply with any reasonable limitations and procedures set forth inthe Personnel Policies Manual that do not interfere with theproper operation of those constitutional or statutory offices.

JIM MATTOX Attorney General ofTexas

MARY KELLER FirstAssistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUUGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee

Prepared by JimMoellinger Assistant Attorney General

P. 4529