.




                      THE   ATTORNEY    GENERAL
                               OF TEXAS

                                May 25, 1988




        Honorable Michael J. Guarino      opinion No.   JM-910
        Criminal District Attorney
        405 County Courthouse            Re: Whether a commissioners
        Galveston, Texas 77550           court is authorized to grant
                                         vacation  and   sick   leave
                                         benefits to    elected   and
                                         appointed county officials,
                                         and related questions
                                         (RQ-1178)

        Dear Mr. Guarino:

             You ask a series of questions regarding the authority
        of a commissioners  court to grant vacation and sick leave
        benefits to both elected and appointed county officials  and
        to pay such officials     for the unused portions   thereof.
        Because resolution of the issues raised by your questions
        rests upon an understanding   of a rather elaborate sequence
        of facts, we set those facts out first in detail.

             YOU inform us that the present Galveston           County
        Personnel Policies Manual, which was duly adopted by the
        commissioners court in 1983, does not authorize     expressly
        the accrual of vacation and sick leave benefits for elected
            appointed  county and precinct     officials,  with    the
        i&sible   exception   of the     county commissioners,     who
        expressly are included with regular employees in the present
        1983 manual.  Previous personnel policy manuals also failed
        to authorize  expressly the accrual of such benefits       for
        elected and appointed officials.    You have included copies
        of the 1969, the 1977, and the 1983 manuals          for our
        inspection.

             Despite the absence of unambiguous authorization     for
        accrual of benefits, however, in approximately January 1978,
    P   the employment   records of    all elected and     appointed
        officials in Galveston  County began reflecting  accumulated
        sick leave and vacation benefits that were calculated    and
        entered into the records by the Galveston County Auditor
        then in office.    You state that the reason the County
        Auditor began such a practice is unclear: you indicate that




                                       P. 4519
                                                                  .

Honorable Michael J. Guarino - Page 2   (JM-910)




accrual of these benefits was never expressly authorized  by
the Galveston County Commissioners Court. The practice   was
terminated on March 31, 1985, when the succeeding     County    --.
Auditor deleted the benefits from the payroll records of all
elected and appointed Galveston County officials.

     You inform us that between January 1978 and March   31,
1985, eleven elected and appointed county officers  retired,
died, or resigned and were paid (or their estates were paid)
for their accumulated    vacation  and/or sick leave,     as
reflected by their payroll records, up to the maximum
allowed under the Personnel  Policies Manual adopted by the
county. Two additional elected officers left office after
March 31, 1985, and were paid for such accrued benefits   by
the present county auditor. YOU include a list of the
titles of the 13 officers who received such benefits and the
amounts of compensation  that each received.   Five elected
officers left office during this period and were not paid
for their accrued benefits.    We now turn to your     first
question.

     First you ask:

        In light of the historical    development of
        this issue, does the Commissioners' Court OF
        Galveston County have the authority to grant
        vacation and sick leave benefits to elected
        and appointed  officials payable upon their
        vacating their present public offices?

     Subchapter B of chapter 152 of the Local Government
Code, formerly codified as article 3912k, V.T.C.S.,      sets
forth the relevant provisions regarding the authority of the
commissioners court to set salaries and compensation      for
county officers and employees.   Section 152.011 of the Local
Government Code provides:    "The commissioners court of a
county shall set the amount of the compensation, office and
travel emenses.   and all other allowances    for county and
precinct officers and emulovees who are xiii wholly      from
countv funds." (Emphasis added.) Subsection 152.013(a)     of
the Local Government Code sets forth the following:

        Each year the commissioners court shall set
        the salary, expenses, and other allowances of
        elected countv or nrecinct      officers.  The
        commissioners court shall set the items at a
        regular meeting of the court during the
        regular   budget    hearing    and    adoption
        proceedings. (Emphasis added.)




                              p. 4520
    Honorable Michael J. Guarino - Page 3   (JM-910)




         This office already has concluded      that sick leave
    benefits  constitute    "compensation . . . and    all   other
-   allowances" for purposes of section 152.011 of the Local
    Government Code, Attorney General Opinions H-860, H-797
    (1976), as does vacation      entitlement,  Attorney   General
    Opinion MW-136   (1980). Entitlement   to holidays   has also
    been held to be a form of ncompensation.l' Attorney    General
    Opinion MW-438 (1982).

         In Attorney General Opinion H-860 (1976), this office
    was asked whether elected county and precinct officials may
    be compensated   for unused sick leave. A county commis-
    sioners court had provided by resolution that elected    and
    appointed officers and employees would accrue sick leave,
    and that persons whose employment      is terminated    were
    entitled to compensation for unused sick leave of up to a
    specified number of days.    The opinion declared that the
    commissioners'   resolution was authorized prior to      the
    effective date of article 3912k, V.T.C.S., by now-repealed
    article 2372h-1, V.T.C.S.,    as to county and      precinct
    employees:   after the enactment   of article   3912k,   the
    commissioners' resolution was authorized   by that statute.
    See Attorney    General Opinion H-797   (1976) (County may
    compensate emolovees for unused sick leave.)

         Regarding officers, however, the opinion noted that,
    before the effective date of article     3912k, no statute
    furnished specific statutory authority for the accrual of
    sick leave by county and precinct    officers. The opinion
    went on to conclude, though, that three statutes then in
    effect impliedly offered such authority:

               In, our      opinion,     these    statutes,
            authorizing the commissioners court to fix
            salaries of county and precinct officials,
            were     sufficient    authority     for    the
            commissioners   court to     provide  for   the
            accrual of sick leave by those officials, and
            to compensate them for the unused portion    of
            any such sick leave. In Attorney General
            Opinion M-1252 (1972), this Office found that
            compensation    for   unused    vacation   time
            constitutes payment of "salary."

    Attorney General Opinion H-860, m      at p.2. The opinion
    concluded the discussion of this issue by stating that the
    commissioners court, both before and after the effective
    date of article 3912k, was authorized to provide sick leave
    for the various county and precinct officials and that the
    commissioners court was then authorized to compensate those




                                  P. 4521
Honorable Michael J. Guarino - Page 4   (JM-910)




officials for the unused portion of     any sick leave   earned
during that period.

     On the basis of Attorney General Opinions          MW-438
(1982); H-1142, H-1113 (1978); H-860, H-797 (1976), as well
as the plain language of sections 152.011 and 152.013 of the
Local Government Code, we conclude that the commissioners
court of Galveston    County is authorized  to grant to those
county   and    precinct    officers   and   employees   whose
"compensation" may be set by the court vacation and sick
leave benefits and to compensate recipients for the unused
leave benefits.   but    e Local Gov't Code, 5152.017 (List of
offices to which sect:& 152.011 does not apply.)

     Your question   is general   in scope: although you ask
about "county and      precinct officers,"    we limit    our
discussion to those officers that were previously     compen-
sated for unused leave.    The general rules of law that we
enunciate   regarding those     officers who have    received
compensation apply also to all other county and precinct
officers and employees whose "compensation" may be set or
supplemented by the commissioners court.

     The list of officers who received compensation includes
a county court judge, a district attorney, and a purchasing
agent. Although   section 152.017 of the Local Government
Code specifically excludes the district attorney and county
court judge from the reach of subchapter B of Chapter     152,
the statutes creating these offices provide        that    the
commissioners court may set or supplement the salaries     for
these offices. m    Gov't Code, 525.0862. Compensation     for
a purchasing agent is governed by section 262.011(k)    of the
Local Government Code, which provides that the board that is
empowered to appoint him is empowered     also to set his
compensaton.  The commissioners court then has a ministerial
duty to approve     such compensation   set.   see Attorney
General Opinion M-708 (1970).

     You next ask:

        In light of the historical    development  of
        this issue, is the Commissioners' Court of
        Galveston County presently required to pay to
        those elected and appointed county officials
        whose employment   records   reflect accumu-
        lated vacation and sick leave time for such
        benefits upon their leaving their present
        public offices?




                              p. 4522
    Honorable Michael J. Guarino - Page 5    (JM-910)




          In answer to your first question, we declared        that
     chapter 152 of the Local Government        Code authorizes   a
-    commissioners   court to grant vacation      and sick    leave
     benefits   and to compensate    recipients   for the    unused
     portions thereof to those county and precinct officers     and
     employees whose "compensation" may be set by the court.     On
     the basis of the information that you have submitted to us,
     we cannot state that the commissioners     court of Galveston
     County is required to compensate those elected and appointed
     county and precinct     officers whose employment      records
     reflect such accumulated     benefits,   because we have no
     evidence that the commissioners court ever properly    adopted
     any resolution   so providing.   YOU stated in your letter
     requesting our opinion that neither the present      Personnel
     Policies Manual nor any of its predecessor manuals expressly
     authorize the accrual of vacation and sick leave benefits to
     county and precinct officers, other than to the commission-
     ers themselves.   See also Attorney General Opinions JM-599,
     JM-430 (1986); H-1142 (1978): H-860, H-797 (1976) (compensa-
     tion policies set in personnel manuals adopted by resolution
     by the commissioners courts or adopted in resolutions    them-
     selves). Nothing that you have submitted in connection with
     your opinion request purports to be such an authorizing
     resolution.   The Personnel Manuals   that you have submitted
    ,with your request reach employees and commissioners; they do
     not reach all elected and appointed county and precinct
     officers.   Section 402.042 of the Government Code does not
     empower this office to make findings of fact while in the
     process   of issuing opinions.      We are unable to      say,
     consequently, whether the commissioners court has in fact
     authorized such a policy.1



          1. You suggest that, since the county budgeted      and
    compensated  certain specified officers     for the    unused
    portion of their accrued benefits between 1978 and 1985, it
    is now estopped   from claiming that it is entitled        to
    reimbursement in the event that'it   is determined that the
    commissioners court did not authorize properly the vacation
    and sick leave benefits.       The principle    of   estoppel
    ordinarily is not applicable to the state or to a political
    subdivision while it is acting in aid of the government's
    sovereign powers.  See, e.s., T & R Associates Inc. v. Citv
    of Amarillo, 688 S.W.Zd 622 (Tex. App. - Amarillo 1985, pet.
    ref'd n.r.e.):  Davis v. CitV of Abilene, 250 S.W.2d 685
    (Tex. Civ. App. - Eastland 1952, writ ref'd). The basis of
    estoppel is deception, and in its absence there can be no
                                             (Footnote Continued)




                                   P. 4523
Honorable Michael J. Guarino - Page 6   (JM-910)



                                                               7



     You next ask:

       If the Commissioners*   Court is not required
       to pay these benefits, is the Commissioners'
       Court legally obligated   to attempt recovery
       of those funds     previously   paid to     the
       thirteen  elected and appointed       officials
       enumerated above?    In addition,   is there a
       viable distinction between the three retired
       County Commissioners     who   were    arguably
       included in the Personnel Policies Manual and
       the Purchasing Agent      whose request     was
       specifically approved and the other elected
       and appointed officials?

     If the benefits  about which you inquire were granted
without commissioners  court approval,  such payments  would
constitute an improper grant of public money in violation of
article III, section 52, of the Texas Constitution.       In
Attorney General Opinion H-797 (1976), this office was asked
about the propriety of compensating employees    for unused
sick leave. Therein we declared:

          We do not believe that there are any
       constitutional obstacles to the adoption   of
       such a policy.    In Attorney General Opinion
       H-51 (1973), we held that a county may not
       authorize the payment of funds to the sur-
       vivors of a deceased county employee if the
       employee had no right to the funds at the
       time of his death, because such payment would
       constitute an impermissible gift or grant of
       public moneys under article 3, sections   51,
       52 and 53 of the Texas Constitution. But the
       commissioners court was permitted,    without
       violating the constitutional prohibition,  to
       compensate the survivors   for the decedent's
       vacation  time and any other compensation


(Footnote Continued)
equitable estoppel.. Bocanecra v. Aetna Life Insurance  Co.,
605 S.W.2d 848 (Tex. 1980); Barfield v. Howard M. Smith Co.
of Amarillo, 426 S.W.2d 834 (Tex. 1968).    On the basis of
the information that you have submitted in connection   with
your opinion request, we conclude that the         requisite
elements for the invocation of estoppel are not present.
Concord Oil Co. v. Alto Oil & Gas %-D        387 S.W:2d  635
(Tex. 1965); Gulbenkian v. Penn, 252 S.W.ih 929 (Tex. 1952).




                             P. 4524
      Honorable Michael J. Guarino - Page 7   (JM-910)
. .




              previously earned by the employee.       Since
              your question contemplates  that at the time
C
              of his retirement    the employee would be
              compensated only for sick leave previously
              earned, there    would   appear to    be
              constitutional   inhibition   affecting    tE
              implementation of such a policy. Thus, it is
              our opinion that a county may compensate   its
              retiring employees  for a portion of their
              sick leave accrued but not taken.

      Analogously, we conclude that any payments for benefits that
      were made without the authority of the commissioners    court
      would also constitute an impermissible     grant of public
      funds. The county would be authorized to seek reimbursement
      but could exercise reasonable discretion as to whether to do
      so in a particular   case. Such factors as the amount of
      funds to be reimbursed,   the ease of collection,   and the
      legal and other costs incident to collection       might be
      considered.  See Attorney General Opinion MW-93 (1979).

           We also understand you to ask whether the three retired
      county commissioners  and the purchasing    agent occupy a
      status other than the one occupied by the other elected   and
      appointed   county and precinct officers.     The Galveston
      County commissioners   appear to have granted themselves
      vacation and sick leave benefits identical to those granted
      to county employees by the commissioners court#s adoption of
      the Personnel Policies Manual. There is no question,    then,
      that the conferral of benefits is proper at least as to the
      commissioners themselves.  The purchasing agent also appears
      properly to have been conferred vacation and sick       leave
      benefits: you have included with your request for an opinion
      a copy of a signed affidavit from the board authorized     to
      appoint the purchasing    agent pursuant to     now-repealed
      article 1580, V.T.C.S.,   specifically requesting  that the
      purchasing agent receive such benefits and a copy of the
      commissioners court resolution   approving payment   to the
      purchasing agent who retired in 1984. See Attorney   General
      Opinion M-708 (1970).

           You next ask:

              If the Commissioners'     Court of Galveston
              County, Texas,  adopts  a   policy to extend
              vacation and sick leave benefits    to those
              elected and appointed officials who showed
              such benefits on their employment records  in
              March, 1985, does the Commissioners‘    Court
              have to extend such benefits to all elected




                                   P. 4525
Honorable Michael J. Guarino - Page 8     (JW-910)




        and appointed   officials   now    and   in   the
        future?

     Section 152.011 of the Local Government Code authorizes
the commissioners court to set "compensation . . . and all
other allowances"   for county and precinct    officers  and
employees who are paid wholly     from county   funds.   The
commissioners court has discretion    as to what kind of
benefits it chooses to offer the occupants of particular
offices. Just so long as the differences between    officers
and/or employees is not so unreasonable as to constitute  an
abuse of discretion, we see no reason why benefits conferred
may not vary, depending upon factors that the commissioners
court properly may consider.

     In answer to the second part of your question,       the
Texas Supreme Court has ruled that, so long as no vested
right is impaired, a duly-enacted statute or resolution that
serves to alter or reduce a benefit heretofore granted     is
permissible.   In the leading case of. Citv f Dallas
Trammell, 101 S.W.2d 1009    (Tex. 1937), the Texas Suprez;!
Court specifically   upheld    the constitutionality   of
statute, the effect of which was to reduce the pensioz
benefits of a pensioner.    The court cast the issue in the
following way:

           As we view the matter, the true question
        involved is this: Does the employee,     after
        retirement, have a vested right to partici-
        pate in the pension fund to the extent of the
        full amount of the monthly        installments
        granted to him at retirement; that is; does
        he have a vested right in future installments
        which cannot be      affected by    subsequent
        legislation tending to dimish the amount of
        such installments?    Puttins the matter     in
        somewhat different lancuaoe, we may properly
        inquire if the right which the employee has
        to participate in the pension fund, acquired
        by virtue of his contract, imposes upon the
        city and the Legislature of the state      (the
        source of the city's power and authority in a
        matter of this kind) the inviolable duty of
        maintaining a pension fund of such propor-
        tions as    will guarantee     the right     to
        defendant in error and others having equal
        rights with him to participate    to the full
        extent of the monthly amounts previously
        awarded to them at the time the right to
        participate accrued?   In other words, is the




                              P. 4526
Honorable Michael J. Guarino - Page 9     (JM-910)




        Legislature without constitutional power to
        repeal the laws upon which the pension system
        of the City of Dallas is based, or to modify
        their provisions in such way as to diminish
        the pensions payable to those who have become
        qualified to receive them so long as any one
        who has been granted a pension shall live?

101 S.W.2d 1009, 1011.

     The court concluded that

        the rule that the right of a pensioner     to
        receive monthly payments   from the pension
        fund after retirement from service, or after
        his right to participate in the fund has
        accrued, is predicated  upon the anticipated
        continuance   of  existing   laws,   and   is
        subordinate to the right of the Legislature
        to abolish the pension system, or diminish
        the   accrued    benefits    of    pensioners
        thereunder, is undoubtedly the sound rule to
        be adopted.

101 S.W.2d 1009,1013. The Texas Supreme Court then declared
that a right,     to be within      the protection   of   the
constitution, must be a vested right or something more than
a mere expectancy based upon an anticipated continuance    of
an existing law: in this instance, the court concluded   that
the pensioners' rights were mere "expectancies.11 101 S.W.2d
1009, 1014-16. &&    also Woods v. Reillv     218 S.W.2d 437
(Tex. 1949); Hoard of Manaaers of the Harris Countv Hosoital
District v. Pension Board of the Pension System for the City
of Houston, 449 S.W.Zd 33 (Tex. 1969)    (citing the Citv of
Dallas v. Trammel1 case with approval); Devon v. Citv of San
Antonio, 443 S.W.2d 598   (Tex. Civ. App. - Waco 1969, writ
ref'd); Attorney  General   Letter Advisory No. 5 (1973).
Accordingly, so long as no vested rights are impaired, we
conclude that the commissioners    court is not required to
continue granting such benefits indefinitely in the future.

     Finally you ask:

        If the Commissioners'    Court of Galveston
        County, Texas, may adopt a policy to extend
        vacation  and sick leave benefits     to all
        elected and appointed officials (or alterna-
        tively to those officials who show such
        benefits  on their employment    records  in
        March, 1985), are such officials required to




                                p. 4527
Honorable Michael J. Guarino - Page 10 (JM-910)




        abide by the vacation and sick leave benefits
        limitations and procedures  presented in the
        Galveston County Personnel Policies Manual?                 --.

     You do not      specify just      what   "limitations    and
procedures" are set forth in the manual with which you think
county and precinct officers must comply.         Thus, we must
address your question in general terms. While this office
consistently has said that a commissioners court possesses
the authority   to set county and precinct        officers'   and
employees' lVcompensation~*pursuant to section 152.011 of the
Local Government     Code and      its predecessor     statutes,
see.e.a., Attorney   General Opinions JR-430 (1986); MW-438
(1982); Mh'w-268 (1980); H-1142,H-1113     (1978); H-860, H-797
(1976) r this office also has  held  that the  authority of the
commissioners court over the operation of other county and
precinct officers is limited. &=g Attorney General Opinions
JM-440   (1986); JR-182    (1984).    In those opinions,       we
concluded that, while the commissioners court is empowered
to set ~*compensation,**including salaries, vacation and sick
leave benefits,    and holidays     for county and      precinct
officers   and employees,    the court does not have          the
authority to set office hours for those officers.           As a
general rule, a county or precinct officer would have to
comply with any reasonable requirements, so long as those
requirements do not interfere with the proper operation        of
the other constitutional or statutory county or precinct
offices.

                        SUMMARY

           1. The commissioners court of Galveston
        County is authorized to grant vacation   and
        sick leave benefits to elected and appointed
        county and precinct officers and employees
        who are paid wholly from county funds.

           2. Whether   the commissioners    court of
        Galveston County presently is required to pay
        to those elected and appointed     county and
        precinct officers whose employment     records
        reflect accumulated vacation   and sick leave
        benefits when they leave their present public
        offices is a question of fact.
                                                                    -,
           3. If the award of benefits was without
        the approval of the commissioners court, the
        court could seek to be reimbursed by those
        who received such compensation    improperly.
                                                                     ?
        The three retired county commissioners,   who




                                  P. 4528
        Honorable Michael J. Guarino - Page 11   (JM-910)
:   .




                were included with other county employees  in
                the county Personnel Policies Manual, and the
                Purchasing Agent, whose conferral of benefits
                was directed before his retirement     by the
                board   that   was   responsible   for    his
                appointment,  are entitled to accrual and
                receipt of such benefits.

                   4. If the commissioners court of Galveston
                County adopts a policy to extend vacation and
                sick leave benefits to all elected         and
                appointed county and precinct officers whose
                employment records reflected the accrual of
                such   benefits    in   March     1985,    the
                commissioners court does not have to extend
                such benefits to all elected and appointed
                county and precinct officers. As long as no
                vested right is impaired, the commissioners
                court may, by resolution      adopted   in the
                future, reduce or alter the benefits that are
                presently granted.

                   5. Those elected and appointed county and
-               precinct officers to whom vacation and sick
                leave benefits are extended are not relieved
                of the responsibility   to comply with any
                reasonable  limitations  and procedures    set
                forth in the Personnel Policies Manual that
                do not interfere with the proper operation of
                those constitutional or statutory offices.




                                             JIM     MATTOX
                                             Attorney General of Texas

        MARY KELLER
        First Assistant Attorney General

        LOU MCCREARY
        Executive Assistant Attorney General

        JUUGE ZOLLIE STEAKLEY
        Special Assistant Attorney General

        RICK GILPIN
        Chairman, Opinion Committee

        Prepared by Jim Moellinger
        Assistant Attorney General


                                      P. 4529
