THE ATTORNEY GENERAL 

OF TEXAS 

April 20, 1990 

Honorable Jack Skeen, Jr. Opinion No. JM-1160 

Criminal District Attorney 

Smith County Courthouse Re: Authority of a county 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 to a county employee who has exhausted 

his allowed sick leave? 

2. May a county permit county employees 

to transfer or pool their unused sick leave 

for the benefit of another county employee 

who has exhausted his allowed sick leave? 

Section 152.011 of the Local Government Code, formerly 

article 3912k, V.T.C.S., provides: 

The commissioners court of a county 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 of additional 

sick leave to a county employee who has exhausted his sick 

leave. Since sick leave is considered a form of compensation or allowance, there would appear to be a constitutional 

problem in granting sick leave retroactively. Article III, 

section 53, of the Texas Constitution prohibits a county 

from making "any extra compensation, fee or allowance" 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 of elected county or precinct 

officers" at a regular meeting of the court during the 

regular budget hearing and adoption proceedings. However, 

opinions of this office have concluded that compensation for 

county employees may be set at any 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 to become effective prospectively any time during the 

year. The fact that one employee may receive greater sick 

leave than another employee would appear to be permissible 

so long as the additional benefits conferred under the 

guidelines are not dependent upon factors that might constitute an abuse of discretion. w Attorney General Opinion 

JM-910, suvra. 

In your second question you ask whether a county may 

permit its employees to transfer or pool 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, or which 

may be reasonably inferred from a specific power. Canales 

v. Lauahlin, 214 S.W.Zd 451 (Tex. 1948); Tex. Const. art. V, 

5 19. 

Article 6252-8e, V.T.C.S., which became effective 

September 1, 1989, provides for the creation and operation 

of a sick leave pool for state employees. However, there is 

no statutory provision authorizing the implementation of a 

sick leave pool for county employees. 

The question is presented whether it may be reasonably 

inferred from the authority granted commissioners courts to 

set compensation and other allowances that the court has the 

power to grant employees permission to transfer sick leave 

into a pool for the benefit of an employee 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 is not 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 to donate a portion of his salary to the county, 

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

a county commissioner may not make such a contribution.1 

But see Local Gov't Code 5 152.002 (statute adopted after 

issuance of Attorney General Opinion JM-1019 allows county 

to accept donation of officer's salary). 

We conclude that a commissioners court, absent legislative authorization, may not grant county employees permission to transfer a portion of their sick leave for the 

benefit of another county employee. 

SUMMARY 

The commissioners court may set guidelines for additional sick leave for county 

employees to become effective prospectively. 

The commissioners court may not authorize 

county employees to transfer unused sick 

leave into a sick leave pool for the benefit 

of other emnlovees. 

MATTOX 

Attorney General of Texas 

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 by Tom G. Davis 

Assistant Attorney General 

1. Section 152.052 of the Local Government Code provides that if an elected county officer files an affidavit 

with the county clerk stating that the officer elects not 

to be paid for the officer's services, the county payroll 

officer may not issue a paycheck to the officer. 

p. 6121