## THE ATTORNEY GENERAL OF TEXAS
April 20, 1990

Honorable Jack Skeen, Jr. Opinion No. JM-1160 Criminal District Attorney Smith County Courthouse Re: Authority ofacounty to Tyler, Texas 75202 make exceptions to its standard sick leave policy (RQ-1938)
Dear Mr. Skeen:
You ask the following questions:

1. May a county grant additional sick leave toacounty employee who has exhausted his allowed sick leave? 2. May acounty permit county employees to transfer orpool their unused sick leave for the benefit of another county employee who has exhausted his allowed sick leave? Section 152.011 ofthe Local Government Code, formerly article 3912k, V.T.C.S., provides:

The commissioners court ofacounty shall set the amount of the compensation, office and travel expenses, and all other allowances for county and precinct officers and employees who are paid wholly from county funds. This office has concluded that sick leave benefits constitute "compensation . . .and all other allowances" for the purpose of section 152.011. Attorney General Opinions JM-910 (1988); H-860 (1976).
Your first question concerns the granting ofadditional sick leave to acounty employee who has exhausted his sick leave. Since sick leave is considered aform of compensation orallowance, there would appear tobe aconstitutional problem ingranting sick leave retroactively. Article III, section 53, ofthe Texas Constitution prohibits a county frommaking "any extra compensation, fee orallowance" for county employees retroactive. See Attorney General Opinion JM-1113 (1989).Honorable Jack Skeen, Jr. -Page 2 (JM-1160)

Section 152.013(a) of the Local Government Code provides that the commissioners court shall set "salary, expenses, and other allowances ofelected county orprecinct officers" at a regular meeting of the court during the regular budget hearing and adoption proceedings. However, opinions ofthis office have concluded that compensation for county employees may be set atany time of the year. Attorney General Opinions JM-1113 (1989); JM-839 (1988); H-11 (1973). We believe that the commissioners court may set guidelines for additional sick leave for county employees tobecome effective prospectively any time during the year. The fact that one employee may receive greater sick leave than another employee would appear tobe permissible so long as the additional benefits conferred under the guidelines are not dependent upon factors that might constitute anabuse of discretion. w Attorney General Opinion JM-910, suvra.
Inyour second question you ask whether acounty may permit its employees totransfer orpool their annual sick leave for the benefit of another employee. Commissioners courts may exercise only such powers as the constitution or the statutes have specifically conferred upon them, orwhich may be reasonably inferred from aspecific power. Canales v. Lauahlin, 214 S.W.Zd 451 (Tex. 1948); Tex. Const. art. V, 519.Article 6252-8e, V.T.C.S., which became effective September 1,1989, provides for the creation and operation ofasick leave pool for state employees. However, there is no statutory provision authorizing the implementation of a sick leave pool for county employees. The question ispresented whether itmay be reasonably inferred from the authority granted commissioners courts to set compensation and other allowances that the court has the power togrant employees permission totransfer sick leave into apool for the benefit ofanemployee who has exhausted his sick leave. A sick leave pool does more than provide compensation to employees. It provides an administrative structure for transferring sick leave from one employee to another, and thus isnot authorized by section 152.011 of the Local Government Code. Attorney General Opinion JM-1019 (1989) concluded that absent an authorization by the legislature permitting an official todonate a portion ofhis salary to the county,

p. 6120Honorable Jack Skeen, Jr. -Page 3 (JM-1160)

acounty commissioner may not make such a contribution.1 But see Local Gov't Code 5152.002 (statute adopted after issuance ofAttorney General Opinion JM-1019 allows county toaccept donation ofofficer's salary).
We conclude that acommissioners court, absent legislative authorization, may not grant county employees permission to transfer a portion oftheir sick leave for the benefit ofanother county employee.
SUMMARY The commissioners court may set guidelines for additional sick leave for county employees tobecome effective prospectively. The commissioners court may not authorize county employees to transfer unused sick leave into asick leave pool for the benefit ofother emnlovees.

MATTOX Attorney General ofTexas
MARY KELLER First Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RENEA HICKS Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared byTom G.Davis Assistant Attorney General

1. Section 152.052 ofthe Local Government Code provides that ifanelected county officer files an affidavit with the county clerk stating that the officer elects not tobepaid for the officer's services, the county payroll officer may not issue apaycheck tothe officer.

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