Honorable Mike Driscoll

Harris County Attorney 1001 Preston, Suite 634 Houston, Texas 77002 Opinion No. JM-1074

Re: Whether the establishment ofa separate payroll department by acommissioners court impermissibly infringes on duties assigned tothe county treasurer (RQ-1541)

Dear Mr. Driscoll:

You inform usthat 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 ina newly created county payroll department. The county treasurer has expressed concern about the actions of the commissioners court and has asked foraclarification ofAttorney General Opinion JM-911 with particular reference tothe following issues:

(1) Does the establishment ofa separate

payroll department by the County Commissioners Court impermissibly usurp the statutory authority ofthe County Treasurer?

(2) Where Harris County officers authorizepayment 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)InHarris County and counties with

populations greater than 190,000, county officers are authorized to issue warrants against the salary fund ofthe county to pay salaries and draw checks on the county treasurer topay salaries. Local Gov't Code 5s 113.047, 154.043.

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(2)InHarris County and counties with populations greater than 500,000, county officers and department heads are required to prepare and file asworn payroll for certain employees in their respective offices or departments. Local Gov't Code 5151.903.

(3)The ministerial aspects of these duties may be delegated to the county treasurer.

(4)The county auditor isnot authorized toperform these duties.

Your questions require consideration oftwo things. First,

wemust examine the powers ofthe commissioners court to ascertain its authority to create apayroll department for all county offices and departments. Second, wemust determine whether the duties granted the department interfere with orusurp the duties ofthe 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 uswith nodetails concerning the operation ofthe payroll department, we are unable to answer whether itsoperations usurp the powers ofthe county treasurer. However, information provided by the treasurer's office suggests that the payroll department will perform duties that are expressly delegated both tocounty officers generally and to the county treasurer specifically. Finally, if county officers inHarris County choose to delegate their authority toprepare salary warrants and paychecks to another office, they are not required to delegate such duties tothe office ofthe county treasurer. The county treasurer, however, isthe official responsible fordelivering paychecks to county officers and employees.

There are fewrules more firmly established in the jurisprudence ofthis state than those governing the powers ofthe 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 orare 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 bebroadly and liberally construed todetermine the

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scope of the express ornecessarily implied power. Cosbv v. Countv Commissioners ofRandall Countv 712 S.W.2d 246 (Tex. APP. -Amarillo 1986, writ ref'd n.r.e:). Where aright is conferred or aduty imposed, the commissioners court is given broad discretion toaccomplish the purposes intended. Attorney General Opinion JM-350 (1985) (citing Anderson v.

suora). Wood.

Asyou observe inyour brief, the implied powers ofthe commissioners court must necessarily flow from some express grant ofauthority. Where the actions ofthe commissioners court can bealigned with specific statutory authority, the courts allow the commissioners substantial latitude in achieving the statutory objective. See, e.a Cosbv Countv Commissioners ofRandall 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~ toadopt order requiring all sexually oriented businesses toobtain permit from county sheriff). However, where the power sought tobe exercised has no legal basis, the commissioners court has no implied authority to act. See, e.a., Canales v. Lauahlin, (commissioners court had nopower toappoint a "county %i unit administrative officer" since no statute authorized the creation of such anoffice); Starr Countv v.Guerra, 297 S.W.Zd 379 (Tex. Civ. APP. - SanAntonio 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 ofthe 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 ofthose accounts." Attorney General Opinion JM-192 (1984) concluded that commissioners court approval ofsalaries 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 apayroll department to the extent one isnecessary forthe approval of claims.

The power of the commissioners court to establish agencies toassist the court isalso subject to familiar and well-established rules. The commissioners court has implied

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authority to employ experts toprovide services that are necessary to the performance of its official duties. Pritchard &Abbott v.McKenna, 350 S.W.2d 333 (Tex. 1961). Incarrying out the general purposes for which it was created, the commissioners court may employ agents to do things that are not specifically required ofother officers. Von fiosenbera v. Lovett, 173 S.W.- 508 (Tex. Civ. App. - Austin 1914. writ ref'd).

confer onanagentThe commissioners court may orother officer authority not, however, the court itself may not exercise. Jones v.Veltmann, 171 S.W. 287 (Tex. Civ. App. -SanAntonio 1914, writ ref'd).

For several reasons, wedo not agree that the commissioners court has implied authority to create a payroll department pursuant to section 115.021. Wehave previously determined that the authority ofthe commissioners court under section 115.021 does not include the implied authority toprepare the county payroll. Attorney General Opinion JM-986 (1988). Furthermore, it seems illogical that the department created bythe commissioners would be authorized toprocess only payrolls, rather than all claims oraccounts against the county requiring court approval under section 115.021. Finally, the creation of a payroll department solely on the order ofthe commissioners court clearly infringes on the powers ofcounty officers, including the county treasurer, onwhom specific authority toprepare the payroll isconferred 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 ofthe authority, rights and duties which inhere inhis 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 himby 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 569). 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 toadopt 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

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Countv, 714 S.W.2d 417 (Tex. APP. -SanAntonio 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, 69S.W. 97 (Tex. Civ. App. 1902, writ ref'd). The commissioners court's implied authority tohire agents and experts issubject to this limitation aswell. 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 inacounty with apopulation of 500,000 ormo,re to file asworn payroll atthe close ofeach month detailing certain information for each person employed by the officer and paid with county funds or funds ofa flood control district located wholly within the county. Section 113.047 authorizes acounty officer inacounty with apopulation of 190,000 or more todraw checks inpayment of salaries. Section 154.043(a) authorizes district, county, and precinct officers insuch acounty to issue salary warrants in payment ofemployees' 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 ofthe Local Government Code tomake deductions from the salaries of county officers and employees and the commissioners court's duty toapprove 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, inour view, indicative of the general understanding of the legislature that payroll duties were among the core functions ofthe constitutional office ofcounty treasurer. Though the legislature arguably has the discretion toconfer some ofthese responsibilities onall county officers generally (as ithas in Local Government Code sections 113.047, 151.903, and

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154.043), we stated the commissioners court has nopower to assign such duties toanother officer.

These opinions and code provisions make it abundantly clear that the commissioners court has no independent general authority toprocess the payroll for all county offices. Since it cannot delegate power it does not possess, the commissioners court iswithout authority to create acounty payroll department to perform such duties forall county offices. Canales v. Lauahlin, suora; Jones Veltmann * Presidio Countv v. Attorney Gen&axnion JM-986 (1988). Walker, suora; You donot disclose whether all county officers have delegated their authority under sections 113.047, 151.903, and 154.043 to the commissioners court ortothe payroll department ithas created. Inthe absence ofan effective delegation of such duties from all county officers, webelieve the commissioners court may not assign payroll responsibilities for all county offices to anagency of itsown creation.

Furthermore, information supplied in connection with this request indicates that the sole duty ofthe 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 ofthe system under these circumstances would require county officers to delegate their payroll duties to anoffice ofthe commissioners courtIs choosing. Also, since weperceive asignificant difference between l'makingl'apayroll deduction and "verifying" one that presumably has already been made, such asystem would require the county treasurer torelinquish 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 toher inher general capacity as county officer and would prevent her from discharging duties specifically imposed upon the office ofcounty 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 ofthe county treasurer, aswell as that ofother county officers.
Moving toyour second question, we refer once more to Attorney General Opinion JM-911:

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The act of 'drawing' a check does not . . . require the officer toactually perform the clerical tasks ofprinting andwriting inthe figures onthe face of the check. Rather, the officer may 'cause itto 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 bedelegated 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 5113.041(a). See also Attorney General Opinion JM-585 (1986) (defining 'disburse' as 'pay orexpend').

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

These remarks were made after careful consideration of the nature and history ofthe office of county treasurer. The statements regarding preparation ofpaychecks reflect the close alignment ofthese functions with duties that are currently orwere formerly delegated tothe county treasurer by statute. m Local Gov't Code 5113.042(a) (treasurer shall endorse face ofproperly drawn warrant, check, voucher, ororder with the order topay 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 topay awarrant by drawing his check as county treasurer upon the county treasury in favor of the legal holder ofthe warrant). Thus, if a county officer were tochoose todelegate the duty of preparing paychecks toanother office, we believe logic and history give priority tothe office ofcounty treasurer over any other.
Priority should not, however, bemistaken for a right ofoffice. Although there isa strong logical preference that all ministerial payroll duties bedelegated to the county treasurer, we are aware ofnoprinciple of law that compels county officers to delegate such functions only to the county treasurer. Toreach this conclusion wewould be forced to endorse aresult wehave already repudiated insofar asthe commissioners court isconcerned. See Aldrich v. Dallas County, m. Ifwe were writing onaclean slate without the aid orhindrance of legislation, wewould be inclined to conclude that the county treasurer isthe 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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sections 113.047, 151.903, and 154.043 of the Local Government Code. So, while there may bemisgivings 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 oradopt public policy. Accordingly,
we conclude that county officers are permitted, but not required, todelegate the duty of preparing paychecks for their respective offices tothe county treasurer.

As far ascheck disbursal isconcerned, wethink it is
now settled that the county treasurer is the official responsible fordelivering 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 noneed to elaborate further on this point.

SUMMARY

The commissioners court ofHarris County has no independent general authority to establish apayroll department. The creation ofacounty 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 ofthe Local Government Code. County officers in Harris County are authorized, but not required, to delegate the preparation of employees' paychecks tothe county treasurer. The county treasurer isthe official responsible for disbursing paychecks to county officers and employees.

JIM MATTOX Attorney General ofTexas

MARY KELLER First Assistant Attorney General

LGUMCCREARY Executive Assistant Attorney General

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JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee

Prepared by Steve Aragon Assistant Attorney General

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