                                             June 28,200O



Ms. Joy L. Dymke                                   Opinion No. JC-0239
Grimes County Auditor
P.O. Box 510                                       Re:     Whether a county has recourse when an
Anderson. Texas 77830                              elected official closes his or her office for all or part
                                                   of a workday for reasons not related to “bad
                                                   weather, repairs, and the like,” and related question
                                                   (RQ-015%JC)

Dear Ms. Dymke:

        A county offtcial generally may close his or her “office for part or all of one or more days
on account of bad weather, repairs, and the like” and may authorize employees “to be paid for the
time they were unable to work because of an office closure.” Tex. Att’y Gen. Op. No. JC-0131
(1999) at 2, 3. You ask what “recourse” a county has if an elected official closes his or her office
“to allow      employees to have time off to Christmas shop or to be able to travel to visit relatives
without it being charged to either vacation, camp time.    [,] or to be docked in the event they have
neither vacation or camp time accrued.” See Letter from Joy L. Dymke, Grimes County Auditor,
to Office of the Attorney General, Attn: John Comyn (Dec. 9, 1999) (on file with Opinion
Committee) [hereinafter “Request Letter”]. We conclude that county citizens may seek to
mandamus the elected public official, but the citizens’ recourse generally is at the ballot box.

         You also ask whether a county commissioners court may adopt a policy under which only
a full-time employee who works forty hours each week or who accounts for absences by taking leave
is entitled to health insurance, vacation, sick leave, and holidays. As you describe the proposed
policy, an employee who takes advantage of the decision of his or her boss, whom you make clear
is an elected county official, to close the office for all or part of a day for reasons not related to “bad
weather, repairs, and the like” must either take leave or be ineligible to receive benefits. See Request
Letter, supva, at 1. We understand you to use the concept of office closure to describe a situation
in which employees are dismissed from the office for all or part of a day, not when an office is
closed to the public although employees are working. We conclude that state law permits a county
commissioners court to premise an employee’s receipt of salary and benefits on a forty-hour work-
week, but the court may not use the policy to interfere with the administration of the elected
official’s office. Moreover, neither the county commissioners court, nor the county auditor, nor the
county treasurer may withhold payment of an employee’s full salary and benefits although the
employee was dismissed from the office for all or part of the day by the supervising official.
Ms. Joy L. Dymke - Page 2                        (X-0239)




        Because Grimes County’s population is lower than 355,000, see 1 BUREAUOFTHE CENSUS,
U.S. DEP’TOFCOMMERCE,      199OC~~svs OFPOPULATION,      General Population Characteristics: Texas
2 (1992) (population: l&828), the Grimes County Commissioners Court is not authorized by statute
to “adopt and enforce uniform rules on the hours ofwork of’ county employees in offices other than
commissioners court offices. See TEX. Lot. GOV’T CODEANN. 4 157.021(a) (Vernon 1999).
Section 157.021 authorizes a county of 355,000 or more to adopt and enforce such uniform rules.
See id. We do not address in this opinion the authority of a county with a population large enough
to permit it, in accordance with section 157.021, to adopt and enforce uniform rules on county
employees’ hours of work.

         A county commissioners court has significant express powers with respect to the hiring and
retention of county employees. A county commissioners court may exercise only those powers that
are explicitly or implicitly conferred upon it by law. See Tex. Att’y Gen. Op. No. JC-0171 (2000)
at 1. In a county the size of Grimes County, when a district, county, or precinct officer “requires the
services of deputies, assistants, or clerks in the performance of the officer’s duties,” the
commissioners court has the power to approve or disapprove the officer’s request to appoint
employees. See TEX. Lot. GOV’TCODEANN.5 151.001(a) (Vernon 1999); accord Commissioners
Court of Shelby County v. Ross, 809 S.W.2d 754,756 (Tex. App.-Tyler 1991, no writ). But cf: TEX.
LOC. GOV’TCODEANN. 5 151.001(e) (Vernon 1999) (“This section does not apply to a district
attorney or criminal district attorney in a county with a population of more than 190,000.“). The
officer’s sworn request must state the number of employees needed, the title of the positions to be
filled, and the amounts to be paid the employees. See id. 5 151.001(a) (Vernon 1999); accord
Commissioners Court of Shelby County, 809 S.W.2d at 756. Upon receiving the officer’s written
application, the commissioners court determines how many employees the officer may appoint. See
TEX. Lot. GOV’TCODEANN. 5 15 1.002 (Vernon 1999); accord Commissioners Court of Shelby
County, 809 S.W.2d at 756. The officer may till the requested positions only after the commissioners
court issues an order approving, in whole or in part, the officer’s request. See Tex. LOC. GOV’T
CODEANN. 4 15 1.003 (Vernon 1999); accord Commissioners Court of Shelby County, 809 S.W.2d
at 756. The commissioners court may reconsider the number of positions in a particular office
during the annual budget process. See generally TEX. LOC. GOV’TCODEANN.ch. 111, subch. A
(Vernon 1999) (budget process for county with population smaller than 225,000).

        A county commissioners court also bears sole authority to “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.” Id. 5 152.011; accord Commissioners
Court of Shelby County, 809 S.W.2d at 756. The authority to set compensation for employees
encompasses the authority to provide benefits. See Tex. Att’y Gen. Op. No. JC-0131 (1999) at 1
(stating that authority granted under section 152.011, Local Government Code, encompasses “the
authority to confer employment benefits upon county officers and employees”).

        Although a county officer similarly is limited to those powers expressly conferred by or
necessarily implied from statutes, see Tex. Att’y Gen. Op. No. JC-0131 (1991) at 1 (quoting
Crosthwait v. State, 138 S.W.2d 1060, 1061 (Tex. 1940), an elected county officer generally has a
Ms. Joy L. Dymke - Page 3                         (X-0239)




“sphere of authority” with which neither the county commissioners, nor any other county official,
may interfere. See Abbott v. Pollock, 946 S.W.2d 513,517 (Tex. App.-Austin 1997, writ denied).
For example, while a commissioners court controls the number ofpositions an officer may appoint,
the court has no authority to select the officer’s employees. See TEX. Lot. GOV’T CODE ANN.
3 15 1.003 (Vernon 1999) (after entry ofcommissioners court’s order, officer applying for employees
mayappointthem); Tarrant Countyv. Smith, 81 S.W.2d 537,538 (Tex. Civ. App.-Fort Worth 1935,
writrefd); Renfrov.Shropshire,    566S.W,2d688,691-92(Tex.Civ.App.-Eastland            1978,writrefd
n.r.e.); Renken v. Harris County, 808 S.W.2d 222, 226 (Tex. App.-Houston [14th Dist.] 1991, no
writ). Additionally, absent a statute to the contrary, a commissioners court may not interfere with
a county official’s authority to set the hours his or her office will be open to the public. See Tex.
Att’y Gen. Op. No. C-350 (1964) at l-2; O-6679 (1945) at 2. A county official has “implied
authority to set the working conditions for his or her own employees.” See Tex. Att’y Gen. Op. No.
JC-0131 (1999) at 2.

        In this way, the commissioners court retains control over the budgetary aspects of the
county’s employment relationships, see Renken, 808 S.W.2d at 226 (“The Commissioners Court
does exercise budgetary powers over the positions in the Constable’s office.“), but the county officer
retains control over the accomplishment of his or her constitutional and statutory duties through,
among other things, the administration of his or her office. Thus,

                [a] commissioners court, which sets the budgetary priorities of a
                county and can decide generally how much of the county’s funds to
                dedicate to each of the county’s purposes, has thereby a considerable
                ability to shape the way in which an elected county official uses the
                resources of his office. But it cannot make those decisions for him.
                It may, in effect, tell that official what resources it will place at his
                disposal. But it may not micro-manage his decisions as to the use of
                those resources.

Tex. Att’y Gen. Op. No. JC-0214 (2000) at 3; cf: Renfro, 566 S.W.2d at 691 (quoting Tarrant
County, 81 S.W.2d at 538) (stating that county officer has obligation to conduct his or her office
lawfully, as does the commissioners court).

        Attorney General Opinion JC-013 1, which applies this same analysis, concludes that an
elected or appointed county official in a county with a population smaller than 355,000, see TEX.
Lot. GOV’T CODEANN.5 157.021(a) (Vernon 1999), may close the official’s office for part or all of
one or more days because of bad weather, repairs, and “the like.” Tex. Att’y Gen. Op. No. JC-013 1
(1999) at 1. The official also may “authorize employees to be paid for the time they were unable
to work because of’ the office closure. Id. at 3. And “if a county officer closes his or her office
for a period that is normally a part of a regular work period [due to] bad weather, repairs, and the
like[,] . neither the commissioners court nor the county treasurer nor the county auditor may
reduce the officers or employees pay or require that the time be charged to leave time.” Id. at 5.
Ms. Joy L. Dymke - Page 4                          (X-0239)




         To resolve your question, we must determine whether the dismissal of employees in a county
official’s office for all or part of a day for reasons other than “bad weather, repairs, and the like” is
within the official’s authority to control the accomplishment of his or her legal duties through the
administration ofhis or her office or within the county commissioners court’s budgetary authority.
By the phrase “the like,” we refer to a situation similar to one in which severe weather or office
conditions make continued presence at the office dangerous or impractical, i.e., temporary
circumstances that implicate the health and safety of the workers or the feasibility of working.

         We conclude that a county officer’s dismissal of employees for reasons other than bad
weather, repairs, and the like is within the officer’s authority and not the authority of the
commissioners court. It is for an elected county official to decide how to use the employees who
work in his or her office to accomplish the officer’s constitutional and statutory duties. Further, it
is for the officer to determine what activities constitute a legitimate use of an employee’s official
time, i.e., work time rather than vacation time. A commissioners court that adopts a policy to keep
employees from following their supervising county official’s instructions to leave may unlawfully
interfere in the official’s sphere of authority. See Abbott, 946 S.W.2d at 517 (stating that county
officer has “sphere of authority” with which other officials may not interfere); Tex. Att’y Gen. Op.
No. JC-0214 (2000) at 5 (stating that commissioners court may not substitute its judgment for that
of another constitutional offrcer in determining how to deploy resources placed at officer’s disposal).

         In all cases, the dismissal of employees must serve a public purpose, one that comports with
article III, section 52 of the Texas Constitution. See TEX. CONST. art. III, 5 52(a). Whether a
particular office closure serves a public purpose must be determined in the first instance by the
public official, whose decision is subject to judicial review. See Tex. Att’y Gen. Op. No. JC-0119
(1999) at 4. Improving employee morale may, for instance, be a sufficient public purpose. See Tex.
Att’y Gen. LO-96-136, at l-2 (summarizing attorney-general opinions considering whether
improving employee morale constituted public purpose).

       You ask what recourse “the county” has when an elected official dismisses his or her
employees for all or part of a day for reasons other than bad weather, repairs, and the like. You do
not explain whether by “the county” you mean citizens of the county or the county commissioners
court. We examine first actions county citizens may take. We will examine a commissioners court’s
response in connection with your final question, regarding the legality of a policy under which
employees must work or account for a forty-hour work week or “‘bedocked.” Request Letter, supra,
at 1.

        A county citizen who feels an officer is failing to perform a legal responsibility may have
recourse by seeking to mandamus the officer. Mandamus may be issued to compel a public official
to perform a “ministerial act or duty” or to “correct a ‘clear abuse of discretion”’ on the official’s
part. See Walker v. Packer, 827 S.W.2d 833,839 (Tex. 1992); Johnson Y. Fourth Court ofAppeals,
700 S.W.2d 916,917 (Tex. 1985); In re Jones, 978 S.W.2d 648,652 (Tex. App.-Amarillo 1998, no
writ); see also In re Jones, 978 S.W.2d at 652 (describing ministerial act). In a case involving a
public official, the court will determine whether the official’s act or refusal to act “is contrary to a
Ms. Joy L. Dymke - Page 5                        (X-0239)




clearly established legal duty.” In re Jones, 978 S.W.2d at 652. Apart from a mandamus action, a
citizen’s recourse is at the ballot box.

        A commissioners court’s avenues of recourse relate to the answer to your first question. You
ask about the legality of a proposed policy under which a county employee who works or accounts
for a forty-hour work week may receive benefits. Under the proposed policy,

               only full time employees (as defined) who work 40 hours on a regular
               basis are entitled to benefits such as health insurance, vacation, sick
               leave, and holidays. In order to receive benefits you must complete
               a time sheet on a prescribed basis (federal law requires you to keep
               records of non exempt employeej] hours worked) and that only full
               time employees working forty hours will be eligible for benefits.
               Employees absent from work must charge those absences to either
               vacation, sick, camp time as appropriate[,] and to the exten[t] accrued
               or be docked. Those employees who fail to adhere to this policy will
               not be eligible for benefits.

Request Letter, supra, at 1. Although you premise your second question on a determination that a
“county” has no recourse in the situation you describe, and we conclude that county citizens may
have avenues of recourse, we answer your second question generally. Thus, we do not evaluate the
particulars of any specific policy, but we consider generally whether, under state law, a county
commissioners court may require a full-time county employee to account for forty hours each week
or be ineligible to receive benefits. We do not address certain federal laws that may be implicated.
See, e.g., 29 U.S.C. ch. 8 (Fair Labor Standards Act); 29 U.S.C. 5s 261 l-2654 (Family &Medical
Leave Act).

         In our opinion, a county commissioners court’s authority to set a county employee’s
compensation encompasses the authority to adopt a policy premising full salary and benefits upon
a forty-hour work week. See TEX. Lot. GOV’T CODE ANN. 5 152.011 (Vernon 1999); see
also Tex. Att’y Gen. Op. No. JC-0131 (1999) at 1 (stating that authority granted under section
152.011, Local Government Code, encompasses “the authority to confer employment benefits
upon county . . . employees”). Nevertheless, a county commissioners court generally may not
second-guess a county ofticer’s use of county employees to accomplish the officer’s constitutional
or statutory duties. Nor may a county commissioners court second-guess a county officer’s
determination that dismissing county employees under his or her supervision on the afternoon before
a county holiday, or at any other time, serves a public purpose or constitutes a legitimate use of
official, work time.

        If a county commissioners court infers from a county officer’s office closure or allocation
of county resources that the elected county officer does not require all of the full-time employees
assigned to that office, the commissioners court’s remedy is to apply its budgetary authority to
reallocate county resources. See TEX. LOC. GOV’T CODE ANN. $ 15 1.002 (Vernon 1999).
Ms. Joy L. Dymke - Page 6                        (X-0239)




         Finally, we note that an officer’s personnel policies may evidence incompetency or offtcial
misconduct for which certain county officers may be removed from office. See TEX. LOC. GOV’T
CODE ANN. 5 87.013(a)(l), (2) (Vernon 1999); see id. 5 87.012 (“Officers Subject to Removal”).
“Incompetency” includes “gross ignorance of official duties” or “gross carelessness in” discharging
official duties. Id. 5 87.01 l(2). “Official misconduct” includes an “intentional or corrupt failure,
refusal, or neglect.   to perform a duty imposed on the officer by law.” Id 5 87.01 l(3). A removal
proceeding must be instituted by the appropriate local prosecutor. See id. 5 87.015; Reeves v. State,
258 S.W. 577,582 (Tex. Civ. App.-Texarkana), rev’don othergrounds, 267 S.W. 666 (1924);see
also Stateexrel. Downs v. Harney, 164 S.W.2d 55,58 (Tex. Civ. App.SanAntonio          1942, writ ref d
w.o.m.). Thus, whether a particular officer’s personnel policies warrant legal proceedings for
incompetency or official misconduct is a question to be determined by the appropriate local
prosecutor. See TEX. Lot. GOV’T CODE ANN. 5 87.015 (Vernon 1999); Reeves, 258 S.W. at 582;
State ex rel. Downs, 164 S.W.2d at 58; see also Tex. Att’y Gen. Op. No. H-56 (1973) at 3 (“whether
or not people[] violate[d] the law ultimately will be a question for jury determination.“).
Ms. Joy L. Dymke - Page 7                      (JC-0239)




                                      SUMMARY

                       An elected county official’s authority to accomplish the
              constitutional or statutory purposes of his or her office encompasses
              the authority to dismiss his or her employees for all or part of a day
              for any reason, although the closure may not violate article III,
              section 52 of the Texas Constitution. County citizens may seek to
              mandamus a county official to open his or her office, but county
              citizens’ general recourse is at the ballot box. A county commis-
              sioners court may adopt a policy requiring a county employee to work
              or account for forty hours of work each week to be eligible for
              compensation and benefits, but the court may not apply the policy to
              interfere in the administration of another county officer’s office. A
              county commissioners court, using its budgetary authority, may
              consider whether the facts warrant decreasing the number of full-time
              county employees assigned to that official’s office.




                                             Attorney General of Texas


ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
