Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002 

Opinion No. JM-1074 

Re: Whether the establishment 

of a separate payroll department by a commissioners court 

impermissibly infringes on 

duties assigned to the county 

treasurer (RQ-1541) 

Dear Mr. Driscoll: 

You inform us that following the issuance of Attorney 

General Opinion JM-911 (1988), the commissioners court of 

Harris County removed payroll processing functions from the 

office of the county auditor and placed them in a newly 

created county payroll department. The county treasurer has 

expressed concern about the actions of the commissioners 

court and has asked for a clarification of Attorney General 

Opinion JM-911 with particular reference to the following 

issues: 

(1) Does the establishment of a separate 

payroll department by the County Commissioners Court impermissibly usurp the 

statutory authority of the County Treasurer? 

(2) Where Harris County officers authorize payment of employee salaries should the 

preparation and disbursal of the checks be 

performed by the County Treasurer? 

Attorney General Opinion JM-911 reached the following 

conclusions: 

(1) In Harris County and counties with 

populations greater than 190,000, county 

officers are authorized to issue warrants 

against the salary fund of the county to pay 

salaries and draw checks on the county 

treasurer to pay salaries. Local Gov't Code 

5s 113.047, 154.043. 

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Honorable Mike Driscoll - Page 2 (JM-1074) 

(2) In Harris County and counties with 

populations greater than 500,000, county 

officers and department heads are required to 

prepare and file a sworn payroll for certain 

employees in their respective offices or 

departments. Local Gov't Code 5 151.903. 

(3) The ministerial aspects of these 

duties may be delegated to the county 

treasurer. 

(4) The county auditor is not authorized 

to perform these duties. 

Your questions require consideration of two things. First, 

we must examine the powers of the commissioners court to 

ascertain its authority to create a payroll department for 

all county offices and departments. Second, we must determine whether the duties granted the department interfere 

with or usurp the duties of the county treasurer. 

As the remainder of this opinion will explain, we 

believe the commissioners court has no independent authority 

to establish a payroll department for all county offices. 

Because you have supplied us with no details concerning the 

operation of the payroll department, we are unable to answer 

whether its operations usurp the powers of the county treasurer. However, information provided by the treasurer's 

office suggests that the payroll department will perform 

duties that are expressly delegated both to county officers 

generally and to the county treasurer specifically. 

Finally, if county officers in Harris County choose to 

delegate their authority to prepare salary warrants and 

paychecks to another office, they are not required to 

delegate such duties to the office of the county treasurer. 

The county treasurer, however, is the official responsible 

for delivering paychecks to county officers and employees. 

There are few rules more firmly established in the 

jurisprudence of this state than those governing the powers 

of the county commissioners court. The familiar and fundamental maxim that guides the courts is that the commissioners court may exercise only those powers that are 

expressly conferred by the constitution and laws of this 

state or are necessarily implied from such express powers. 

See Tex. Const. art. V, § 18(b); see also Canales v. 

Lauohlin, 214 S.W.2d 451 (Tex. 1948); Anderson v. Wood, 152 

S.W.2d 1084 (Tex. 1941). Constitutional or statutory provisions conferring authority upon the commissioners court 

should be broadly and liberally construed to determine the 

P. 5590 
Honorable Mike Driscoll - Page 3 (JM-1074) 

scope of the express or necessarily implied power. Cosbv v. 

Countv Commissioners of Randall Countv 712 S.W.2d 246 (Tex. 

APP. - Amarillo 1986, writ ref'd n.r.e:). Where a right is 

conferred or a duty imposed, the commissioners court is 

given broad discretion to accomplish the purposes intended. 

Attorney General Opinion JM-350 (1985) (citing Anderson v. 

Wood. suora). 

As you observe in your brief, the implied powers of the 

commissioners court must necessarily flow from some express 

grant of authority. Where the actions of the commissioners 

court can be aligned with specific statutory authority, the 

courts allow the commissioners substantial latitude in 

achieving the statutory objective. See, e.a Cosbv 

Countv Commissioners of Randall County suora (cAmmissione:s 

court had implied authority under former V.T.C.S. articles 

1603 and 2351(7) to demolish and replace existing former 

courthouse); Schone v. State, 647 S.W.2d 675 (Tex. App. - 

Houston [14th Dist.] 1982, pet. ref'd) (authority under 

former V.T.C.S. article 2372~ to adopt order requiring all 

sexually oriented businesses to obtain permit from county 

sheriff). However, where the power sought to be exercised 

has no legal basis, the commissioners court has no implied 

authority to act. See, e.a., Canales v. Lauahlin, 

(commissioners court had no power to appoint a "county %i 

unit administrative officer" since no statute authorized the 

creation of such an office); Starr Countv v. Guerra, 297 

S.W.Zd 379 (Tex. Civ. APP. - San Antonio 1956, no writ) 

(employment of county commissioner as road commissioner 

contrary to commissioner's oath of office and former 

V.T.C.S. articles 6737 and 6762). 

YOU acknowledge the absence of express statutory 

provisions granting the commissioners court the power to 

create a county payroll department, yet you contend such 

authority may be implied from section 115.021 of the Local 

Government Code. Section 115.021 directs that the commissioners court shall "audit and settle all accounts against 

the county and shall direct the payment of those accounts." 

Attorney General Opinion JM-192 (1984) concluded that 

commissioners court approval of salaries was required by the 

statutory predecessor of section 115.021 before salary 

warrants could be issued. See also Attorney General Opinion 

JM-986 (1988). YOU conclude that the commissioners court 

has implied authority to establish a payroll department to 

the extent one is necessary for the approval of claims. 

The power of the commissioners court to establish 

agencies to assist the court is also subject to familiar and 

well-established rules. The commissioners court has implied 

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Honorable Mike Driscoll - Page 4 (JM-1074) 

authority to employ experts to provide services that are 

necessary to the performance of its official duties. 

Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961). 

In carrying out the general purposes for which it was 

created, the commissioners court may employ agents to do 

things that are not specifically required of other officers. 

Von fiosenbera v. Lovett, 173 S.W.- 508 (Tex. Civ. App. - 

Austin 1914. writ ref'd). 

confer on an agent 

The commissioners court may 

or other officer authority 

not, 

however, the 

court itself may not exercise. Jones v. Veltmann, 171 S.W. 

287 (Tex. Civ. App. - San Antonio 1914, writ ref'd). 

For several reasons, we do not agree that the commissioners court has implied authority to create a payroll 

department pursuant to section 115.021. We have previously 

determined that the authority of the commissioners court 

under section 115.021 does not include the implied authority 

to prepare the county payroll. Attorney General Opinion 

JM-986 (1988). Furthermore, it seems illogical that the 

department created by the commissioners would be authorized 

to process only payrolls, rather than all claims or accounts 

against the county requiring court approval under section 

115.021. Finally, the creation of a payroll department 

solely on the order of the commissioners court clearly 

infringes on the powers of county officers, including the 

county treasurer, on whom specific authority to prepare the 

payroll is conferred by statute. 

Another limitation of the commissioners court's 

authority is that it may not usurp the powers of other 

county officers: 

The commissioners' court cannot deprive an 

officer of the authority, rights and duties 

which inhere in his office, nor require him 

to delegate the same to another person 

selected by it: nor can it displace an 

officer by authorizing another person to 

perform duties devolved upon him by statute. 

Aldrich v. Dallas Countv, 167 S.W.2d 560, 565 (Tex. Civ. 

APP. - Dallas 1942, writ dism'd) (quoting 34 Tex. Jur., 

Public Officers 5 69). See also Navarro Countv v. Tullos, 

237 S.W. 982 (Tex. Civ. App. - Dallas 1922, Writ ref'd). 

Other cases furnish ample proof of the vitality of this 

principle. Collectively, they demonstrate that the commissioners court may not arrogate or intrude upon the statutory 

duties of other officers under the guise of its general 

powers, its authority to adopt and approve budgets, or its 

power to set salaries. See Bastroo Countv v. Hearn, 8 S.W. 

302 (Tex. 1888); Vondv v. Commissioners Court of Uvalde 

p. 5592 
Honorable Mike Driscoll - Page 5 (JM-1074) 

Countv, 714 S.W.2d 417 (Tex. APP. - San Antonio 1986, writ 

ref'd n.r.e.): Caldwell Countv v. Citizens State Bank, 676 

S.W.2d 159 (Tex. APP. - Austin 1984, writ ref'd n.r.e.) ; 

Commissioners Court of Harris Countv Fullerton, 596 

S.W.2d 572 (Tex. Civ. App. - Houston (lstVDist.] 1980, writ 

ref'd n.r.e.): Presidio Countv v. Walker, 69 S.W. 97 (Tex. 

Civ. App. 1902, writ ref'd). The commissioners court's 

implied authority to hire agents and experts is subject to 

this limitation as well. See, e.a., Terre11 v. Greene, 31 

S.W. 631 (Tex. 1895); Seaaler v. Adams, 238 S.W. 707 (Tex. 

Civ. App. - Galveston 1922), aff'd, 250 S.W. 413 (Tex. 

1923). 

Attorney General Opinion JM-911 concluded that the 

legislature, via three provisions of the Local Government 

Code, delegated primary responsibility for .the preparation 

and processing of payroll and the payment of salaries to 

county officers and department heads in Harris County. 

Section 151.903 requires county officers and department 

heads in a county with a population of 500,000 or mo,re to 

file a sworn payroll at the close of each month detailing 

certain information for each person employed by the officer 

and paid with county funds or funds of a flood control 

district located wholly within the county. Section 113.047 

authorizes a county officer in a county with a population of 

190,000 or more to draw checks in payment of salaries. 

Section 154.043(a) authorizes district, county, and precinct 

officers in such a county to issue salary warrants in payment of employees' salaries. These provisions were determined to vest county officers with the bulk of payroll 

responsibilities. The most notable exceptions were the 

county treasurer#s duty under section 155.021 of the Local 

Government Code to make deductions from the salaries of 

county officers and employees and the commissioners court's 

duty to approve salary payments under section 115.021. 

As previously mentioned, Attorney General Opinion 

JM-986 concluded that the commissioners court has no implied 

authority under section 115.021 to prepare the county 

payroll. This opinion also determined that section 155.021 

gave the county treasurer the power and the duty to make 

deductions from the compensation of county officers and 

employees. The latter provision was, in our view, indicative of the general understanding of the legislature that 

payroll duties were among the core functions of the constitutional office of county treasurer. Though the legislature 

arguably has the discretion to confer some of these responsibilities on all county officers generally (as it has in 

Local Government Code sections 113.047, 151.903, and 

P. 5593 
Honorable Mike Driscoll - Page 6 (JM-1074) 

154.043), we stated the commissioners court has no power to 

assign such duties to another officer. 

These opinions and code provisions make it abundantly 

clear that the commissioners court has no independent 

general authority to process the payroll for all county 

offices. Since it cannot delegate power it does not 

possess, the commissioners court is without authority to 

create a county payroll department to perform such duties 

for all county offices. Canales v. Lauahlin, suora; Jones 

Veltmann * Presidio Countv v. 

Attorney Gen&axnion JM-986 (1988). 

Walker, suora; 

You do not disclose 

whether all county officers have delegated their authority 

under sections 113.047, 151.903, and 154.043 to the commissioners court or to the payroll department it has created. 

In the absence of an effective delegation of such duties 

from all county officers, we believe the commissioners court 

may not assign payroll responsibilities for all county 

offices to an agency of its own creation. 

Furthermore, information supplied in connection with 

this request indicates that the sole duty of the payroll 

department created by the commissioners court will be to 

process payrolls. The county treasurer will be allowed to 

"verify" payroll deductions, print paychecks and direct 

deposit statements, and disburse paychecks to employees. 

The implementation of the system under these circumstances 

would require county officers to delegate their payroll 

duties to an office of the commissioners courtIs choosing. 

Also, since we perceive a significant difference between 

l'makingl' a payroll deduction and "verifying" one that presumably has already been made, such a system would require 

the county treasurer to relinquish her duties under section 

155.021. See Attorney General Opinion JM-986 (1988) 

(describing treasurer's duty to ltmakel* deductions under 

section 155.021). The commissioners court's proposal would 

thus deprive the county treasurer of authority expressly 

granted to her in her general capacity as county officer and 

would prevent her from discharging duties specifically 

imposed upon the office of county treasurer by section 

155.021. This would plainly exceed the command of the 

commissioners court. Aldrich v. Dallas Countv m. 

Accordingly, we conclude that the establishmeAt of 

separate payroll department by the commissioners courg 

impermissibly usurps the statutory authority of the county 

treasurer, as well as that of other county officers. 

Moving to your second question, we refer once more to 

Attorney General Opinion JM-911: 

P. 5594 
Honorable Mike Driscoll - Page 7 (JM-1074) 

The act of 'drawing' a check does not . . . 

require the officer to actually perform the 

clerical tasks of printing and writing in the 

figures on the face of the check. Rather, 

the officer may 'cause it to be written,' 

i.e., may delegate this task. We believe 

that both logic and constitutional law dictate that the only other official to whom 

this function properly may be delegated is 

the county treasurer, since the treasurer is 

authorized to 'pay and apply' county money as 

required by law or the commissioners court. 

Local Gov't Code 5 113.041(a). See also 

Attorney General Opinion JM-585 (1986) 

(defining 'disburse' as 'pay or expend'). 

Attorney General Opinion JM-911 (1988), at 18. 

These remarks were made after careful consideration of 

the nature and history of the office of county treasurer. 

The statements regarding preparation of paychecks reflect 

the close alignment of these functions with duties that are 

currently or were formerly delegated to the county treasurer 

by statute. m Local Gov't Code 5 113.042(a) (treasurer 

shall endorse face of properly drawn warrant, check, voucher, or order with the order to pay the named payee if there 

are sufficient funds in the account against which it is 

drawn); former V.T.C.S. art. 2554 (predecessor of section 

113.042(a), requiring treasurer to pay a warrant by drawing 

his check as county treasurer upon the county treasury in 

favor of the legal holder of the warrant). Thus, if a 

county officer were to choose to delegate the duty of preparing paychecks to another office, we believe logic and 

history give priority to the office of county treasurer over 

any other. 

Priority should not, however, be mistaken for a right 

of office. Although there is a strong logical preference 

that all ministerial payroll duties be delegated to the 

county treasurer, we are aware of no principle of law that 

compels county officers to delegate such functions only to 

the county treasurer. To reach this conclusion we would be 

forced to endorse a result we have already repudiated insofar as the commissioners court is concerned. See Aldrich v. 

Dallas County, m. If we were writing on a clean slate 

without the aid or hindrance of legislation, we would be 

inclined to conclude that the county treasurer is the only 

officer who could assume duties associated with the county 

payroll. See Attorney General Opinion JM-986 (1988). Our 

inclinations, however, are tempered by the enactment of 

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Honorable Mike Driscoll - Page 8 (JM-1074) 

sections 113.047, 151.903, and 154.043 of the Local 

Government Code. So, while there may be misgivings about 

delegating such responsibilities to an agent or officer 

other than the county treasurer, only the legislature has 

the power to remedy this deficiency. This office has no 

authority to formulate or adopt public policy. Accordingly, 

we conclude that county officers are permitted, but not 

required, to delegate the duty of preparing paychecks for 

their respective offices to the county treasurer. 

As far as check disbursal is concerned, we think it is 

now settled that the county treasurer is the official 

responsible for delivering paychecks to county officers and 

employees. &g Attorney General Opinions JM-986, JM-911 

(1988): JM-585 (1986). Since you do not dispute this 

conclusion, there is no need to elaborate further on this 

point. 

SUMMARY 

The commissioners court of Harris County 

has no independent general authority to 

establish a payroll department. The creation 

of a county payroll department under the circumstances considered in this opinion would 

impermissibly usurp the statutory authority 

of the county treasurer under sections 

113.047, 151.903, 154.043, and 155.021 of the 

Local Government Code. County officers in 

Harris County are authorized, but not 

required, to delegate the preparation of 

employees' paychecks to the county treasurer. 

The county treasurer is the official responsible for disbursing paychecks to county 

officers and employees. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LGU MCCREARY 

Executive Assistant Attorney General 

P- 5596 
Honorable Mike Driscoll - Page 9 (JM-1074) 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Steve Aragon 

Assistant Attorney General 

p. 5597