    OFPKE   OF THE ATTORNEY GENERAL.   STATE OF TEXAS

    JOHN CORNYN




                                                October 22, 1999



Ms. Raymie Kana                                         Opinion No. JC-0131
Colorado County Auditor
400 Spring Street, Third Floor                          Re: Authority of a county official to close county
Columbus, Texas 78934                                   office for all or part of a day, and related questions
                                                        (RQ-0068-JC)

Dear Ms. Kana:

         You ask whether an elected or appointed county official has the authority to close the
official’s office for part or all of one or more days on account of bad weather, repairs, and the like.
You also ask whether county employees in that official’s office may be paid for the time they did
not work because of an office closure, or whether they must charge the time to available vacation
or compensatory time. Finally, you ask whether the county treasurer or county auditormaywithhold
approval or payment.of an employee’s salary where the employee’s time sheet indicates that the
employee worked, but where the treasurer or auditor strongly suspects or knows that the employee
did not work because of an office closure.

        The authority of a county officer is limited to those powers expressly conferred by statute
or constitution or necessarily implied therefrom. Crosthwait v. State, 138 S.W.2d 1060,106l (Tex.
1940). Your first two questions require us to determine whether county officers have the express
or necessarily implied authority to close their offices and to authorize employees to receive regular
pay for the time they did not work because of the closure.

        Section 152.011 ofthe Local Government Code requires a county commissioners court, with
certain exceptions, 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.”
TEX. Lot. GOV’TCODE ANN. 5 152.011 (Vernon 1999); see id. 9 152.017 (providing that section
152.011 does not apply to county auditor, district attorney’s office, certain judges, and others). This
office has construed section 152.011 broadly to find that a commissioners court has the authority to
confer employment benefits upon county officers and employees, including longevity pay, vacation
leave, sick leave, and paid holidays. See, e.g., Tex. Att’y Gen. Op. Nos. M-910 (1988) at 4
(vacation and sick leave); MW-438 (1982) at 2 (paid holidays); Tex. Att’y Gen. LO-96-007, at 2
(longevity pay).

        However, the authority of a commissioners court to set county compensation does not include
the authority to set the office hours of other county ofEcials and their employees. Several laws with
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limited application allow a commissioners court to set the office hours of county employees. For
example, in a county with a population of 355,000 or more, the commissioners court is expressly
authorized by statute to “adopt and enforce uniform rules on the hours ofwork of department heads,
assistants, deputies, and other employees whose compensation is set or approved by the court.” TEX.
Lot. GOV’T CODE ANN. 5 157.021(a) (Vernon 1999) (emphasis added); see also id. 5 158.035(a)
(adoption of working conditions in civil service counties). But no such specific statute applies to
Colorado County, and no state law of general application dictates the office hours to be observed by
county officials and their employees or allows the commissioners court to establish the hours for all
county offices.

         In the absence of such a law this office has concluded that each county official has the
implied authority to set the working conditions for his or her own employees, and as a general rule,
neither the commissioners court nor other officers may set working conditions for other offtces. See
Tex. Att’y Gen. Op. Nos. JM-1099 (1989) at 4 (“The powers ofcountyofficers, includingthecounty
sheriff, over personnel matters is also quite extensive, subject to appropriate constitutional and
statutory restraints.“); .%I-521 (1986) at 3 (commissioners court may not set the working conditions
of other county officials).

        Thus, opinions of this offrce have said that a commissioners court has no authority to set the
office hours of district and county clerks, see Tex. Att’y Gen. LO-94-082 at 2; to set the office hours
of the county auditor, see Tex. Att’y Gen. Gp. No. IM-440 (1986) at 2; to order offices of elected
county officials to be open at lunch, see Tex. Att’y Gen. Op. No. JM-182 (1984) at 3; or to set the
office hours of justices of the peace, see Tex. Att’y Gen. Gp. No. M-l 197 (1972) at l-2. Other
opinions have said that a constitutional county office may close on Saturday without consent of
commissioners court, see Tex. Att’y Gen. Op. No. C-350 (1964) at 2, and that a county auditor may
not make a deduction from a county offtcer’s salary for failing to keep his office open on Saturday,
see Tex. Att’y Gen. Gp. No. O-6679 (1945) at 2.

         In our view, the opinions prohibiting a commissioners court from setting all county office
hours remain correct. County commissioners, like other county officers, have only the powers
expressly conferred by the Texas Constitution or statutes or necessarily implied therefrom. See
Canales Y. Laughlin, 214 S.W.2d 451,453 (Tex. 1948); Abbott v. Pollock, 946 S.W.2d 513, 517
(Tex. App.-Austin 1997, writ denied). Neither the commissioners court nor any county officers may
interfere with or usurp the duties or performance of independent county officials and their
employees. Pritchard&Abbottv. McKenna,350 S.W.2d333,335 (Tex. 1961);Abbott,946 S.W.2d
at 517. No law applicable to Colorado County establishes who may set county office hours
generally. In such case, each county offtcer has the implied authority to set the hours of his or her
own offtce, subject to the requirement that the hours enable the offtce to perform its constitutional
and statutory duties. See Tex. Att’y Gen. Op. No. N-1099 (1989) at 4. Accordingly, we conclude
that in the absence of an applicable law to the contrary, an elected or appointed county official has
the authority to close the official’s of&e for part or all of one or more days on account of bad
weather, repairs, and the like.
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        We also conclude that the power of a county officer to close his or her office includes the
power to authorize employees to be paid for the time they were unable to work because of an office
closure. In Attorney General Letter Opinion 94-082 this office considered whether a commissioners
court could reduce the pay of district and county clerk employees where the clerk’s office shortened
its work day. See Tex. Att’y Gen. LO-94-082, at 1. The office was previously open on weekdays
from 8 a.m. to 5 p.m., then changed to 8:30 a.m. to 4:30 p.m. with no closure for lunch hour. See
id. The opinion concludes that the commissioners court could not set the hours that the clerk’s office
must be open and could not reduce the salaries of the clerk and the clerk’s deputies except in
accordance with the regular statutory budget procedure. See id. at 2.

        Similarly, in Attorney General Opinion O-6679 a county auditor asked whether he could
make deductions from a county offtcer’s salary if the officer refused to open his or her office on
Saturdays. See Tex. Att’y Gen. Gp. No. O-6679 (1945) at 1. In that case, the commissioners court
had ordered a six-day work week for county offices. See id. Finding no law that required county
offices to be open to the public a certain amount of time, other than a reasonable time, nor any law
that authorized the commissioners court to set county office hours, the opinion concludes: “The
County Auditor has only such powers and duties as are conferred upon him by the laws of this State
and we know of no provision which gives the County Auditor the power or duty to deduct t?om the
salary check (an incident to the office) of a county officer any amount for the reason that said officer
failed to keep his office open to the public six 8-hour days (or 48 hours) per week.” Id. at 2.

        Thus, once the salaries of county officers and employees are set, the salaries may not be
reduced, outside of the regular budget adoption and amendment process, to account for office
closures. Accordingly, we conclude that if a county officer closes his or her office for a period that
is normally a part of a regular work period for the types of reasons about which you ask-bad
weather, repairs, and the like-the officer and the office’s employees may be paid for that time, and
neither the commissioners court nor the county treasurer nor the county auditor may reduce the
offtcers’ or employees’ pay or require that the time be charged to leave time.

        Finally, we consider whether a county treasurer or county auditor may withhold approval or
payment of an employee’s salary for time the treasurer or auditor strongly suspects or knows that
the employee did not work because of an officer-approved office closure. We conclude that neither
a county treasurer nor a county auditor may do so.

         Both the treasurer and the auditor are part of the checks and balances of a county’s fiscal
administration and are charged in some way with ensuring the proper and legal expenditure ofpublic
funds. The Texas Constitution establishes the offtce of the county treasurer, but gives the
Legislature the responsibility to prescribe the treasurer’s duties. See TEX. CONST.art. XVI, 4 44(a).
The county treasurer is the chief custodian of county funds and disburses all money belonging to the
county. TEX. Lot. GOV’T CODE ANN. @j 113.001, .041(a) (Vernon 1999). Money may be
withdrawn from the county treasury only upon a check or warrant drawn on the treasury by an
official authorized to do so. Id. 5 113.041(b), (c).
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         The treasurer is under a ministerial duty to pay a check presented to the treasurer that
complies with the procedural requirements set out by statute, unless the treasurer doubts the legality
or propriety of the check. “If the treasurer doubts the legality or propriety of an order, decree,
certificate, or warrant presented to the treasurer for payment, the treasurer may not make the
payment.” Id. 4 113.041(d). Instead, the treasurer must decline to pay the check and report the
matter to the commissioners court for instructions. Id. Thus, courts and this office have said that
while a treasurer’s duty to pay a warrant is ministerial when the statutory requirements for payment
have been met, the treasurer has discretion to deny payment if the treasurer doubts the validity of the
payment. SeeMcDonaldv. Farmer, 56 SW. 555,556-57 (Tex Civ. App.Galveston 1900, no writ);
Walker v. Barnard, 27 S.W. 726,727-28 (Tex Civ. App.-San Antonio 1894, writ ref d); Tex. Att’y
Gen. Gp. Nos. H-1148 (1978) at 1; H-171 (1973) at 4-5; WW-430 (1958) at 5.

         The duties of the county auditor similarly are ministerial under some circumstances and
discretionary under others. The county auditor has general oversight authority over the books and
records of county offices and is charged with the “strict enforcement of the law governing county
finances.” TEX. LOC. GOV’T CODE ANN. 5 112.006 (vemon 1999). Except for a check for jury
service, “the county treasurer and the county depository may not pay a check or warrant unless it is
countersigned by the county auditor to validate it as a proper and budgeted item of expenditure.”
Id. 5 113.043. Courts and this office have recognized the case of Smith v. McCoy, 533 S.W.2d 457
(Tex. Civ. App.-Dallas 1976, writ dism’d w.o.j.), as setting out the prevailing approach to the
question of an auditor’s duty to countersign a salary warrant. See, e.g., Crider v. Cox, 960 S.W.2d
703,706 (Tex. App.-Tyler 1997,writ denied); Commissioners Court ofHarris Countyv. Fullerton,
596 S.W.2d 572,579 (Tex. Civ. App.-Houston [lst Dist.] 1980, writ refd n.r.e.); Tex. Att’y Gen.
Op. No. JM-1186 (1990) at 3; Tex. Att’y Gen. LO-98-103, at 2 n.4; LO-93-91, at 4-5.

         In Smith v. McCoy the court considered whether a county auditor could withhold approval
ofback pay to deputy sheriffs who were reinstated following suspension. Smith, 533 S.W.2d at 458.
The auditor was presented with a “difficult legal question,” the court said, as to whether the deputies
were entitled to back pay. Id. at 459. The court held that because the auditor is charged with the
“[sltrict enforcement ofthe law governing county finances,” the auditor’s duty to countersign checks
is discretionary, unless right to the payment is established as a matter of law. Id. ‘Evidence that
appellees were suspended from their jobs and subsequently reinstated does not establish as a matter
of law that they were entitled to compensation for the period of their suspension.” Id. at 460. The
auditor’s ability to disapprove doubtml payments, the court said, is part of the statutory system of
checks and balances that exists for the purpose of protecting county funds. Id. at 459. Where an
individual’s right to a salary is established as a matter of law, however, the auditor is under a
ministerial duty to approve the payment. Id. at 460. In Attorney General Opinion JM-192 we
explained:

                [I]f the county employee, as a matter of right, is entitled to be paid a
                sum certain, the county auditor has a ministerial duty to co-sign the
                w-t       and may be subject to awrit ofmandamus to do so; however,
                if the auditor has reasonable grounds on which to question the salary
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               payments, he may, in his discretion, refuse to co-sign the warrant, in
               which event the employee’s remedy is a suit against the county rather
               than a mandamus action against the auditor.

Tex. Att’y Gen. Gp. No. TM-192 (1984) at 2.

         Accordingly, inJackson v. Leonard, 578 S.W.2d 879 (Tex. Civ. App.-Houston [14th Dist.]
1979, writ ref d n.r.e.), the court held that the county auditor had a ministerial duty to approve the
payment of salary increases ofjustices ofthe peace where the increases had been awarded pursuant
to the statutory grievance procedure, even though the auditor suspected that the increases were really
to pay for office space. See Jackson, 578 S.W.2d at 881. The salaries had been set in accordance
with the statutory requirements, which did not include discretionary approval by the auditor. See
id. “It follows therefore that the auditor is not empowered to go behind the action of the salary
grievance committee and question the mental processes behind such action or the motives thereof.”
Id. Thus, the court held, the auditor had a ministerial duty to approve payment of the salaries. See
id. at 882.

         Similarly, Attorney General Opinion M-40 concludes that where the commissioners court
approved a salary increase for certain elected officials, and where the increases were within the legal
limits, “the function of the county auditor in approving the payment of such salaries and in signing
salary warrants is ministerial only.” Tex. Att’y Gen. Gp. No. M-40 (1967) at 6. And Attorney
General Opinion JM-1186 concludes that while an auditor could require county constables to submit
monthly documentation in support of their monthly requests for mileage reimbursement, “it is not
generally within the province of the auditor to ensure that county officers and employees are
complying with the duties of their office or employment imposed on them by law where such efforts
are not necessary to the accomplishment of the auditor’s statutory duties.” Tex. Att’y Gen. Op. No.
JM-1186 (1990) at 4. But see Tex. Att’y Gen. Op. No. O-6624 (1945) at 2 (concluding that county
auditor may refuse to countersign salary warrant if he believes that employee is not performing
work).

         Because an elected or appointed county official has the authority to close the official’s office
for part or all of one or more days on account of bad weather, repairs, and the like, and to authorize
employees to be paid for the time they were unable to work, the duty of a county treasurer and
county auditor to approve salary payments in the event of such a closure is ministerial, not
discretionary. As we have said, the salaries ofcounty officers and employees, with some exceptions,
are set by the commissioners court. See TEX. Lot. GOV’T CODE ANN. 5 152.011 (Vernon 1999).
Neither the county treasurer nor the county auditor has the power to make deductions from salaries
for the failure of a county officer to keep his or her office open for certain hours. See Tex. Att’y
Gen. Gp. No. O-6679 (1945) at 2. Thus, we conclude that neither the county treasurer nor the county
auditor may withhold approval or payment of an employee’s salary for time the treasurer or auditor
suspects or knows that the employee did not work because of an officer-approved office closure.
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                                     SUMMARY


                      An elected or appointed county official has the authority to
              close the offtcial’s office for part or all of one or more days on
              account of bad weather, repairs, and the like, and to authorize
              employees to be paid for the time they were unable to work because
              of an office closure. Neither the county auditor nor the county
              treasurer may withhold approval or payment of an employee’s salary
              for time the treasurer or auditor strongly suspects or knows that the
              employee did not work because of such an office closure.




                                             JOHN     CORNYN
                                             Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee
