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                                            June 13, 1973


The Honorable Weldon C. Wells                         Opinion No. H- 51
County Auditor
,202 County Courthouse                                 Re:      Whether Commissioners    Court
Waco, Texas 76701                                               may authorize payments to
                                                                survivors of a deceased employee.

Dear Mr.      Wells:

    You have requested            the opinion of this office      on the following   questions:

            “1. May the Commissioners     Court authorize
        payment to the beneficiaries of a deceased employee
        for unused vacation time and/or other compensation
        to which the employee was entitled at the time of his
        death?

            “2.  May the Commissioners     Court authorize any
        payment to the beneficiaries of a deceased employee on
        behalf of the employee for a period subsequent to the
        time of his death?”

    In your letter you state that this request was prompted by an order of
the Commissioners     Court that a change beg made in county policy relative
to the death of county employees,    retroactive    to June 1, 1972, and effective
immediately.     The change  would provide    a  death benefit of a determinable
amount plus monetary compensation for any accrued and unused vacation
time based on the employee’s monthly per diem rate.

    Section     51 of Art.icle      j of t~heTexas    Constitution    provides   in part:

             “The Legislature shall have no power to make
        any grant or authorize the making of any grant of
        public moneys to any individual, association of in-
        dividuals,  municipal or olhcr corporations what,-
        soever . . . .I’




                                              p. 213
The Honorable    Weldon C. Wells,     page 2 (H-51)




   Section   52 of Article   3 of the Texas   Constitution    provides    in part:

           “Except as otherwise provided by this section,
       the Legislature  shall have no power to authoriee any
       county, city, town or other political corporation or
       subdivision of the State to lend its credit or to grant
       public money or thing of value in aid of, or to any
       individual, association or corporation whatsoever,
       or to become a stockholder in such corporation,
       association or company . . . . ”

   Section   53 of Article   3 of the Texas    Constitution   provides:

           “The Legislature   shall have no power to grant
       or to authorize any county or municipal authority to
       grant, any extra compensation,     fee or allowance to
       a public officer, agent, servant or contractor,    after
       service has been rendered,    or a contract has been
       entered into, and performed    in whole or in part; nor
       pay nor authorize payment of, any claim created against
       any county or municipality   of the State, under any agree-
       ment or contract, made without authority of law. ”

    The Legislature  has authorized compensation for county employees
by enactment of Article 3912k, Vernon’s Texas Civil Statutes, which
provides in part:

            “Except as otherwise provided by this Act
       and subject to the limitations  of this Act, the
       Commissioners      Court of each county shall fix
       the amount of compensation,     office expense,
       travel expense, and all other allowances for
       county and precinct officials and employees who
       are paid wholly from county funds, but in no
       event shall such salaries be set lower than they
       exist at rhe effective date of this Act. ”

    While this statute authorizes the county to,fix the amount of compensation
its employees shall receive,    it does not and cannot authorize the counties
to do that which is prohibited by the previously   quoted provisions of the Texas




                                      p. 214
. .



      The Honorable   Weldon C. Wells,    Page 3 (H-51)’




      ConstituLion.  It is therefore our opinion that the action of the commissioners
      court under consideration cannot be given the attempted retroactive    effect.
      and can only have effect after the date of passage.   Pierson v. Galveston
      County, 131 S. W. 2d 27 (Tex. Civ. App., 1939); Empire Gas & Fuel CO. v. Stale,
      47 S. W. Zd 265 (Tex. 1932).

          The order of the commissioners     court authorizing payment of funds to
      the survivors of a deceased employee , measured by the salary of said
      employee, but to which said employee had no right at the time of his death,
      is in the nature of a death benefit provision.  Ti?ere is no authority for the
      commissioners    court to provide death benefits in this manner.

           Article 16, § 62(b), Texas Constitution,   authorizes each county to provide
      for and administer a Retirement.,    Disability and Death Compensation Fund,
      but. does not authorize such benefits as those set out in the order under exam-
      ination.

           The commissioners    court is a court of limited jurisdiction and has
      only such powers as are conferred upon it by the Constitution and statutes
      of this State either by express terms or by necessary implication.       Childress
      County v. State, 92 S. W. 2d 1011(Tex. 1936); Hill v. Sterrett, 252 S. W. td 766
      (Tex. Civ. App. , 1952, error ref. 1 n. r. e. ); Von Rosenberg v. Lovett, 173
      S. W. 508 (Tex. Civ. App., 1915, error ref. ); Roper v. Hall, 280 S. W. 289
      (Tex. Civ. App. , 1925). The attempted grant of death benefits, in our
      opinion, is not authorized by the constitutional and statutory provisions
      relative thereto, and therefore constitutes an attempted grant or gift of
      public moneys to individuals in violation of the previously quoted consti-
      tutional provisions.

          Your request for our opinion coucerning unused vacation time and other
      compensation to which the employee was entitled recognizes that the payment
      under discussion is of compensation previously     earned by the employee.       lt
      is therefore our opinion that such payments would not constitute a gift or
      grant of public moneys.   lt is also our opinion that the commissioners       court
      IS authorized to make such payment~s for previously     earned unused, vacation
      time Bnd other compensation by the provisions     of Article 3912k, ‘V. T. C. S.,
      which states that such court “shall fix the amount of compensation,      office
      expense, travel expense and all other allowances. ”




                                         p. 215
The Honorable   Weldon C. Wells,   page 4         (H-51)




                         SUMMARY

           Upon the death of an employee, the Commissioners
       Court may authorire payments of accrued vacation time
       and for other earned compensation but may not authorize
       payment at death of other benefits not previously earned
       or accrued.

                                   Very       truly    yours,




                            c/     Attorney           General   of Texas




 DAVID M, KENDALL,        Chairman
 Opinion Committee




                                   p. 216




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