    OFFICE OF THE ATTORNEY    GENERAL . STATE OF TEXAS

    JOHN     CORNYN




                                                April 17,200l



The Honorable James Warren Smith, Jr.                       Opinion No. JC-0370
Frio County Attorney
500 East San Antonio Street, Box 1                          Re:    Whether a county may pay accrued
Pearsall, Texas 7806 l-3 100                                vacation or compensatory time to two sheriffs
                                                            deputies if, when the time accrued, the county
                                                            did not permit such payments, and related
                                                            question (RQ-0324-JC)

Dear Mr. Smith:

        Under article III, section 53 of the Texas Constitution, a county may not retroactively            grant
extra compensation to an employee for services the employee already has performed. See                     TEX.
CONST. art. III, 0 53. You ask whether a county may pay accrued vacation and compensatory                   time
to two sheriffs deputies if, when the time accrued, the county did not permit such payments.*                The
county may not.

         You also ask whether, under subsections 113.041 (a) and 113.041 (d) of the Local Government
Code, the county treasurer has “blanket authority” to make these payments without “coming before
the commissioners court on a case-by-case basis to seek permission.” See Request Letter, note 1,
at 2; see also TEX. Lot. GOV’TCODEANN. 9 113.041(a), (d) (V emon Supp. 2001). Section 113.041,
which directs a county treasurer to disburse county money “as the commissioners court may require
or direct,” does not permit the treasurer to disburse county money without obtaining the
commissioners court’s approval. The commissioners court may not delegate this duty.

        Two Frio County deputy sheriffs have requested the commissioners court to pay them for
their accrued vacation time, including some time carried over from a previous benefit year, and
compensatory time. See id. at 2. Their request brought to light a practice by the county treasurer
of which, you aver, the commissioners court previously had been unaware. See id. “Unbeknownst
to the Frio County Commissioners      Court, several Frio County Deputy Sheriffs in the past had
requested (through the Frio County Sheriff) from the Frio County Treasurer that they be paid for
accrued vacation time,” including carried-over vacation time, “and at least one deputy sheriff’ also
asked to be paid for accrued compensatory time. Id. The county treasurer paid all of the past claims.



         ‘See Letter from Honorable James Warren Smith, Jr., Frio County Attorney, to Honorable John Comyn, Texas
Attorney General (Dec. 5,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable    James Warren Smith Jr. - Page 2         JC-0370




See id. “The county treasurer informed me and the commissioners court that this ‘has always been
done,’ and she didn’t think she needed to come to the commissioners court for authority to pay
accrued vacation time (or compensatory time) to those requesting it.” Id. at 2. The county treasurer
did not pay these particular deputies’ claims because “they had not submitted their request before
the end of the county’s fiscal year (i.e. September 30,200O); and, therefore, they could not be paid
because there was not money in the new fiscal year’s budget to pay them.” Id. Hence, the deputies
requested payment “at a special called meeting of the Frio County Commissioners Court.” Id.; see
TEX. Lot. GOV’T CODE ANN. 8 81.005(b) (Vernon Supp. 2001) (permitting county judge or three
county commissioners to call special term).

         We presume that, when the deputies accrued this vacation and compensatory time, the county
did not permit payment for accrued vacation or compensatory time. You assert that the employee
handbook in effect at that time did not provide for paying an employee for accrued vacation time
except upon the employee’s termination.       See Request Letter, supra note 1, at 1. Nor did the
handbook provide that an exempt employee may be paid for hours worked in excess of the normal
forty-hour work week. See id. Whether the county in fact permitted payment for accrued vacation
or compensatory time is a fact question that this office cannot resolve. See Tex. Att’y Gen. Op. Nos.
JC-0020 (1999) at 2 (“[I] nvestigation and resolution of fact questions . . . cannot be done in the
opinion process.“); DM-98 (1992) at 3 (“[Q]uestions of fact cannot be resolved in the opinion
process.“).

         The county may not approve the requested payments-and         the treasurer may not make the
payments. If the county pays the deputies for accrued vacation or accrued compensatory time when,
at the time the deputies accrued the time, the county did not permit payments for accrued vacation
or compensatory time, the county would violate article III, section 53 of the Texas Constitution.
Article III, section 53 withholds from the legislature power to authorize a county to grant “any extra
compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been
rendered.” TEX.CONST.art. III, 9 53. Accordingly, a county may not retroactively award or increase
compensation. See Tex. Att’y Gen. Op. No. JC-0026 (1999) at 2. And, should the county revise its
handbook to permit payments for accrued vacation or compensatory time, the county may not apply
the increased benefits to services performed before the revisions took effect. See Tex. Att’y Gen.
Op. No. JC-0123 (1999) at 2.

         You also ask about the county treasurer’s authority under subsections 113.041(a) and
113.04 1(d) of the Local Government Code to make the payments she has already made. See Request
Letter, supra note 1, at 2; see also TEX. LOC. GOV’T CODE ANN. 8 113.041 (a), (d) (Vernon Supp.
2001). Because we cannot find facts, we are compelled to assume that the treasurer’s practice was
in fact “[ulnbeknownst” to the commissioners court, as your letter indicates. See Request Letter,
supra note 1, at l-2; see also Tex. Att’y Gen. Op. Nos. JC-0020 (1999) at 2 (“[IInvestigation and
resolution of fact questions . . . cannot be done in the opinion process.“); DM-98 (1992) at 3
(“[Q]uestions of fact cannot be resolved in the opinion process.“).
The Honorable James Warren Smith Jr. - Page 3                   JC-0370




         A commissioners court has a nondelegable duty to review county payrolls and to issue
warrants, although the level of scrutiny to which any particular disbursal is subject may vary from
county to county. See Tex. Att’y Gen. Op. No. JM-986 (1988) at 7;2 see also Tex. Att’y Gen. Op.
No. JC-0100 (1999) at 2 (stating that commissioners court may not delegate powers requiring
exercise ofjudgment and discretion); cJ:Padgett v. Young County, 204 S.W. 1046,1052 (Tex. Civ.
App.-Fort Worth 1918, writ dism’d) (determining that commissioners court has nondelegable duty
to “audit all claims against the county and to order paid those only which are found to be just and
legal demands”). The commissioners court must approve salaries paid to county employees “before
any warrants may be issued.” Tex. Att’y Gen. Op. No. JM- 192 (1984) at 5. And, as part of its duty
generally to set the county employees’ compensation, the commissioners court has sole authority
to grant vacation and compensatory benefits “and pay or credit personnel for unused portions”
of these benefits. Tex. Att’y Gen. Op. No. JC-0123 (1999) at 1; see TEX. LOC. GOV’T CODE ANN.
8 152.011 (Vernon 1999) (requiring commissioners court to “set the amount of the compensation,
office and travel expenses, and all other allowances” for county employees who are paid wholly fi-om
county funds); Tex. Att’y Gen. Op. Nos. JC-0147 (1999) at 1 (“With certain exceptions, the
commissioners court sets the salary of each county officer and employee paid wholly from county
tinds.“); MW-438 (1982) at 2 (stating that vacation entitlement is compensation).

          Conversely, a county treasurer may not disburse county funds unless the commissioners court
has approved the disbursal. A county treasurer has a ministerial duty to disburse county money “as
the commissioners court may require or direct.” TEX.LOC. Gov’TCODEANN. 8 113.041(a) (Vernon
Supp. 2001); see Tex. Att’y Gen. Op. No. H-171 (1973) at 4-5. The treasurer may not pay “money
out of the county treasury without a certificate or warrant from an officer who is authorized by law
to issue the certificate or warrant.” TEX. LOC. GOV’T CODE ANN. 8 113.041(c) (Vernon Supp. 2001).
In a county with a population less than 190,000, such as Frio County, see 1 BUREAU OFTHECENSUS,
U.S. DEP’T OF COMMERCE, 1990 CENSUS OF POPULATION: General Population Characteristics:
Texas 2 (1992) (population of Frio County is 13,472), only the commissioners court may issue a
certificate or warrant. See Tex. Att’y Gen. LO-95-002, at 1.

         Section 113.041 (d) of the Local Government Code, which you cite, does not directly relate.
Under that section, “[i]f the treasurer doubts the legality or propriety of an order, decree, or warrant
presented to the treasurer for payment, the treasurer may not make the payment” but must report the
matter to the commissioners court for its consideration and direction. TEX. LOC. GOV’T CODE ANN.
0 113.041(d) (V emon Supp. 2001). While subsection (d) supports the conclusion that only the
commissioners court has final authority to approve a disbursal of county funds, you do not indicate
that the treasurer questioned the legality or propriety of making payments for accrued vacation or
compensatory time generally.




         *The Texas Supreme Court partially reversed Attorney General Opinion JM-986 in Commissioners Court of
Titus County v. Agan, 940 S.W.2d 77,82 (Tex. 1997), which concludes that the commissioners court may not delegate
the county treasurer’s core functions to another county officer. We do not understand Agan to question the point for
which we cite the attorney general opinion here.
The Honorable   James Warren Smith Jr. - Page 4        JC-0370




                                       SUMMARY

                        A county may not pay accrued vacation or compensatory time
                to two deputy sheriffs if, when the time accrued, the county did not
                permit such payments.       A county commissioners      court has a
                nondelegable duty to review the county payroll and to approve
                warrants. A county treasurer may not disburse county funds without
                the county commissioners court’s approval. See TEX. LOC. GOV’T
                CODE ANN. 8 113.041(a), (c) (Vernon Supp. 2001).




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
