. 

THE ATTORNEY GENERAL 

OF TEXAS 

May 25, 1988 

Honorable Michael J. Guarino opinion No. JM-910 

Criminal District Attorney 

405 County Courthouse Re: Whether a commissioners 

Galveston, Texas 77550 court is authorized to grant 

vacation and sick leave 

benefits to elected and 

appointed county officials, 

and related questions 

(RQ-1178) 

Dear Mr. Guarino: 

You ask a series of questions regarding the authority 

of a commissioners court to grant vacation and sick leave 

benefits to both elected and appointed county officials and 

to pay such officials for the unused portions thereof. 

Because resolution of the issues raised by your questions 

rests upon an understanding of a rather elaborate sequence 

of facts, we set those facts out first in detail. 

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 of vacation and sick leave benefits for elected 

appointed 

i&sible 

county and precinct officials, with the 

exception of the county commissioners, who 

expressly are included with regular employees in the present 

1983 manual. Previous personnel policy manuals also failed 

to authorize expressly the accrual of such benefits for 

elected and appointed officials. You have included copies 

of the 1969, the 1977, and the 1983 manuals for our 

inspection. 

Despite the absence of unambiguous authorization for 

accrual of benefits, however, in approximately January 1978, 

P the employment records of all elected and appointed 

officials in Galveston 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 a practice is unclear: you indicate that 

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

. 

accrual of these benefits was never expressly authorized by 

the Galveston County Commissioners Court. The practice was 

terminated on March 31, 1985, when the succeeding County --. 

Auditor deleted the benefits from the payroll records of all 

elected and appointed Galveston County officials. 

You inform us that between January 1978 and March 31, 

1985, eleven elected and appointed county officers retired, 

died, or resigned and were paid (or their 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, and were paid for such accrued benefits by 

the present county auditor. YOU include a list of the 

titles of the 13 officers who received such benefits and the 

amounts of compensation that each received. Five elected 

officers left office during this period and were not paid 

for their accrued benefits. We now turn to your first 

question. 

First you ask: 

In light of the historical 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 152 of 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 

travel emenses. and all other allowances for county and 

precinct officers and emulovees who are xiii 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. 4520 
Honorable 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 to holidays has also 

been held to be a form of ncompensation.l' Attorney General 

Opinion MW-438 (1982). 

In Attorney General Opinion H-860 (1976), this office 

was asked whether elected county and precinct officials may 

be compensated for unused 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 

of up to a 

of days. 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 for unused sick leave.) 

Regarding officers, however, the opinion noted that, 

before the effective date of article 3912k, no statute 

furnished specific statutory authority for the accrual of 

sick leave by county and precinct 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 leave by those officials, and 

to compensate them for the unused 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 at p.2. The opinion 

concluded the discussion of this issue by stating that the 

commissioners court, both before and after the effective 

date of article 3912k, was authorized to provide sick leave 

for the various county and precinct officials and that the 

commissioners court was then authorized to compensate those 

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

officials for the 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 the plain language of sections 152.011 and 152.013 of the 

Local Government Code, we conclude that the commissioners 

court of Galveston County is authorized to grant to those 

county and precinct officers and employees whose 

"compensation" may be set by the court vacation and sick 

leave benefits and to compensate recipients for the unused 

leave benefits. but e Local Gov't Code, 5152.017 (List of 

offices to which sect:& 152.011 does not apply.) 

Your question is general in scope: although you ask 

about "county and precinct officers," we limit our 

discussion to those officers that were previously compensated for unused leave. The general 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, a district attorney, and a purchasing 

agent. Although section 152.017 of the Local Government 

Code specifically excludes the district attorney and county 

court judge from the reach of subchapter B of Chapter 152, 

the statutes creating these offices provide that the 

commissioners court may set or supplement the salaries for 

these offices. m Gov't Code, 525.0862. Compensation for 

a purchasing agent is governed by section 262.011(k) of the 

Local Government Code, which provides that the board that is 

empowered to appoint him is empowered also to set his 

compensaton. The commissioners court then has a ministerial 

duty to approve such compensation set. see Attorney 

General Opinion M-708 (1970). 

You next ask: 

In light of the historical development of 

this issue, is the Commissioners' Court of 

Galveston County presently required to pay to 

those elected and appointed county officials 

whose employment records reflect accumulated vacation and sick leave time for such 

benefits upon their leaving their present 

public offices? 

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

In answer to your 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 and precinct officers and 

employees whose "compensation" may be set by the court. On 

the basis of the information that you have submitted to us, 

we cannot state that the commissioners court of Galveston 

County is required 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 so providing. YOU stated in your letter 

requesting our opinion that neither the present Personnel 

Policies Manual nor any of its predecessor manuals expressly 

authorize the accrual of vacation and sick leave benefits to 

county and precinct officers, other than to the commissioners themselves. See also Attorney General Opinions JM-599, 

JM-430 (1986); H-1142 (1978): H-860, H-797 (1976) (compensation policies set in personnel manuals adopted by resolution 

by the commissioners courts or adopted in resolutions themselves). Nothing that you have submitted in connection with 

your opinion request purports to be such an authorizing 

resolution. The Personnel Manuals that you have submitted 

,with your request reach employees and commissioners; they do 

not reach all elected and appointed county and precinct 

officers. Section 402.042 of the Government Code does not 

empower this office to make findings of fact while in the 

process of issuing opinions. We are unable to say, 

consequently, whether the commissioners court has in fact 

authorized such a policy.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 

is now estopped from claiming that it is entitled to 

reimbursement in the event that'it is determined that the 

commissioners court did not authorize properly the vacation 

and sick leave benefits. The principle of estoppel 

ordinarily is not applicable to the state or to a political 

subdivision while it is acting in aid of the government's 

sovereign powers. See, e.s., T & R Associates Inc. v. Citv 

of Amarillo, 688 S.W.Zd 622 (Tex. App. - Amarillo 1985, pet. 

ref'd n.r.e.): Davis v. CitV of Abilene, 250 S.W.2d 685 

(Tex. Civ. App. - Eastland 1952, writ ref'd). The basis of 

estoppel is deception, and in its absence there can be no 

(Footnote Continued) 

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

You next ask: 

If the Commissioners* Court is not required 

to pay these benefits, is the Commissioners' 

Court legally obligated to attempt recovery 

of those funds previously paid to the 

thirteen elected and appointed officials 

enumerated above? In addition, is there a 

viable distinction between the three retired 

County Commissioners who were arguably 

included in the Personnel Policies Manual and 

the Purchasing Agent whose request was 

specifically approved and the other elected 

and appointed officials? 

If the benefits about which you inquire were granted 

without commissioners court approval, such payments would 

constitute an improper grant of public money in violation 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 a policy. In Attorney General Opinion 

H-51 (1973), we held that a county may not 

authorize the payment of funds to the survivors of a deceased county employee if the 

employee had no right to the funds at the 

time of his death, because such payment would 

constitute an impermissible gift or grant of 

public moneys under article 3, sections 51, 

52 and 53 of 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. 

of Amarillo, 426 S.W.2d 834 (Tex. 1968). On the basis of 

the information that you have submitted in connection with 

your opinion request, we conclude that the requisite 

elements for the invocation of estoppel 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 a policy. Thus, it is 

our opinion that a county may compensate its 

retiring employees for a portion of their 

sick leave accrued but not taken. 

Analogously, we conclude that any payments for benefits that 

were made without 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 to whether to do 

so in a particular 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. See Attorney General Opinion MW-93 (1979). 

We also understand you to ask whether 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 leave benefits identical to those granted 

to county employees by the commissioners court#s adoption of 

the Personnel Policies Manual. There is no question, then, 

that the conferral of benefits is proper at least as to the 

commissioners themselves. The purchasing agent also appears 

properly to have been conferred vacation and sick leave 

benefits: you have included with your request for an opinion 

a copy of a signed affidavit from the board authorized to 

appoint the purchasing agent pursuant to now-repealed 

article 1580, V.T.C.S., specifically requesting that the 

purchasing agent receive such benefits and a copy of the 

commissioners court resolution approving payment to the 

purchasing agent who 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 leave benefits 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 is not so unreasonable as to constitute an 

abuse of discretion, we see no reason why benefits conferred 

may not vary, depending upon factors that the commissioners 

court properly may consider. 

In answer to the second part of your question, the 

Texas Supreme Court has ruled that, so long as no vested 

right is impaired, a duly-enacted statute or resolution that 

serves to alter or reduce 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 of which was to reduce the pensioz 

benefits of a pensioner. The court cast the issue in the 

following way: 

As we view the matter, the true question 

involved is this: Does the employee, after 

retirement, have a vested right to participate in the pension fund to the extent of the 

full amount of the monthly installments 

granted to him at retirement; that is; does 

he have a vested 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, we may properly 

inquire if the right which the employee has 

to participate in the pension fund, acquired 

by virtue of his contract, imposes upon the 

city and the Legislature of the state (the 

source of the city's power and authority in a 

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 to participate to the full 

extent of the monthly amounts previously 

awarded to them at the time the right to 

participate accrued? In other words, is the 

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

Legislature without constitutional power to 

repeal the laws upon which the pension system 

of the City of Dallas is based, or to modify 

their provisions in such way as to diminish 

the pensions payable to those who have become 

qualified to receive them so long as any one 

who has been granted a pension shall live? 

101 S.W.2d 1009, 1011. 

The court concluded that 

the rule that the right of a pensioner to 

receive monthly payments from the pension 

fund after retirement from service, or after 

his right to participate in the fund has 

accrued, is predicated upon the anticipated 

continuance of existing laws, and is 

subordinate to the right of the Legislature 

to abolish the pension system, or diminish 

the accrued benefits of pensioners 

thereunder, is undoubtedly 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 a vested right or something more than 

a mere expectancy based upon an anticipated continuance of 

an existing law: in this instance, the court concluded that 

the pensioners' rights were mere "expectancies.11 101 S.W.2d 

1009, 1014-16. && also Woods v. Reillv 218 S.W.2d 437 

(Tex. 1949); Hoard of Manaaers of the Harris Countv Hosoital 

District v. Pension Board of the Pension System for the City 

of Houston, 449 S.W.Zd 33 (Tex. 1969) (citing the Citv of 

Dallas v. Trammel1 case with 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 as no vested rights are impaired, we 

conclude that the commissioners court is not required to 

continue granting such benefits indefinitely in the future. 

Finally you ask: 

If the Commissioners' Court of Galveston 

County, Texas, may adopt a policy 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. 4527 
Honorable Michael J. Guarino - Page 10 (JM-910) 

abide by the vacation and sick leave benefits 

limitations and procedures presented in the 

Galveston County Personnel Policies Manual? --. 

You do not specify just what "limitations and 

procedures" are set forth in the manual with which you think 

county and precinct officers must comply. Thus, we must 

address your question in general terms. While this office 

consistently has said that a commissioners 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) r this 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 the proper 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 are paid wholly from county funds. 

2. Whether the commissioners court of 

Galveston County presently is required 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 is a question of fact. 

3. If the award of benefits was without 

the approval of the commissioners court, the 

court could seek to be reimbursed by those 

who received such compensation improperly. 

The three retired county commissioners, who 

-, 

? 

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

: . 

- 

were included with other county employees in 

the county Personnel Policies Manual, and the 

Purchasing Agent, whose conferral of benefits 

was directed before his retirement by the 

board that was responsible for his 

appointment, are entitled to accrual and 

receipt of such benefits. 

4. If the commissioners court of Galveston 

County adopts a policy to extend vacation and 

sick leave benefits to all elected and 

appointed county and precinct officers whose 

employment records reflected the accrual of 

such benefits in March 1985, the 

commissioners court does not have to extend 

such benefits to all elected and appointed 

county and precinct officers. As long as no 

vested right is impaired, the commissioners 

court may, by resolution adopted in the 

future, reduce or alter the benefits that are 

presently granted. 

5. Those elected and appointed county and 

precinct officers to whom vacation and sick 

leave benefits are extended are not relieved 

of the responsibility to comply with any 

reasonable limitations and procedures set 

forth in the Personnel Policies Manual that 

do not interfere with the proper operation of 

those constitutional or statutory offices. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUUGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

P. 4529