                            AUS’FIN.   T’EXAS     %iJ711
CRAWFORD    c. MARTlN
  #x-row    o-
                         September ~10, 1968


     Honorable Henry Wade                       Opinion No. W- 277
     District Attorney
     Dallas C,ounty                             Re:   Whether the Commissioners Court
     Dallas, Texas 75202
                    .-                                of Dallas County has the op-
                                                      tion to expend bounty funds
                                                      in’the repair, maintenance and
                                                      operation of court houses and
                                                      other public’buildings through
                                                      its own employees or through an
     Dear Mr. Wade:                                   independent contractor.
               We have received a request from your office-for an
     official opinion in regard to,the above stated matter. We quote
     from your,request a0 follows:
                “The Commissioners Court of Dallas County,
           Texas, has asked thie office tomrequest from you
           your official opinion a8 to the proper answer to
           the following legal question:
                “‘Does the Commissioners’ Court of Dallas
           County have the option to expend county funds in
           the repair, maintenance Ind operation of court.
           houses and other necessary public buildings,
           either by accomplishing its statutory duty and
           authority under Article 2351, V.A.C.S.;throtigh
           ita own employees or through independent con-
           tractors? ’ ’
                “It is our tentative opinion..thatthe Com-
           missioners’ Court of Dallas County has the power
           and authority to accomplish any of the statutory
           duties contemplated by Article 2351, V.A.C.S., at
           its option and at its election, by’contracting for
           the performance thereof either, by and through
           county emploqeee or by and through independent
           contractora.
               The pertinent provision of Article 2351, Vernon’s Civil
     Statutes, provides:


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        Hon. Henry Wade, page 2 (M-277)


                  "Each commissioners court shall:
                  11
                   . . .
                  "7 . Provide and keep in repair court houses
             jails and all necessary public buildings.
                  II
                   . . .II
                  The above quoted provision of Article 2351 -was considered
        in detail by the Texas Supreme Court In Anderson v. Wood, 137 Tex.
        201, 152 S.W.2d 1084 (1941). The court stated at page TO&:
                 'We will first discuss the question as to
            who has the right to employ and discharge the
            court house engineer, janitor, and elevator op-
            erators. The exact question here under con-
            sideration does not appear to have ever been
            judicially determined In this State. Our
            Constitution, Article V, Section 18, Vernon's
            Ann. St., provides In part as follows: 'The
            county commissioners so chosen, with the county
            judge, as presiding officer, shall compose the
            County Commissioners Court, which shall exercise
            such powers and jurisdiction over all county
            business, as Is conferred by this Constitution
            and the Laws of the State, or as may be hereafter
            prescribed.' While under the above constitutional
            provision the jurisdiction of the Commissioners'
            Court over county business is not general and all-
            inclusive, but is limited to such as Is specifically
            conferred by the Constitution and statutes (Mills
            County v. Lampasas County. 90 Tex. 603, 40 S.W. 403), yet
            the Commissioners' Court is the acting governing body
            of the county   Ehlinger v. Cl k 117 T        54'1 549
            8 S W 26 bbb*'Jernigan v. Finlz,'gO Texexb05,    58 S.G.
            24;'AAderson'v. Parsley, Tex.Clv.App. 37 S.W.2d 358.
            It is the general business and contracting agency of
            z;;c;u;;y, and it alone has authority to make con-
                     ndinn on the county, unless otherwise
            specifically provided by,statute. 11 Tex.Jur. 630;
            American Disinfectin Co. v. Freestone County, Tex.
            Civ.App., 193 S.W. 4&0; Germo Mfg. Co. v. Coleman
            County, Tex.Civ.App., 184 S.W. 1063; Matthews
            Lumber Co. v. Van Zandt County, Tex.Clv.App., 77
            S.W. 960; Fayette County v. Krause et al., 31 Tex.
            Civ.App. 569, 73 S.W. 51. Where a right is conferred
            or obligation imposed on said court, it has Implied

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Hon. Henry Wade, Page 3 (M-277)


     authority to exercise a broad discretion to
     accomplish the purposes intended. 11 Tex.Jur,
     565; City Nat. Hank vi Presidio County, Tex.
     Civ.App., 26 S.W. 775; Qussett v. Nueces County,
     Tex.Com.App., 235 S.W. 857; Dodeon v. Marshall,
     Tex.Civ.App., 118 s.w.w 621.
          "3. On the otherhand, a sheriff has.no
     authority to make contracts that are binding one
     the county, except where he is specially so au-
     thorized to do by statute. 11 Tex.Jur. 636;
     Germo Mfg. Co. v. Coleman County, Tex.Civ. App.,
     184 S.W. 1063; American Disinfecting Co. v.
     Freestone County, Tex.Civ.App., 193 S.W. 440;
     Sparks v. Kaufman C.ounty,Tex.Clv.App., 194 S.W.
     605.
           '4. .Revised Statutes, ~Artlcle 2351;impoaes
     on the Commissioners' Court the duty to 'Frovide
     and keep in repair court houses, ,jailsand all
     neceesary public building8. 1 The duty thus im-
     DOSed.is not llmlted to the furnlshlna of a bare
     building and keeping it in repa&.      IE contemplates
     an Inhabitable court house; one that is ,usable for
     the purposes    intended. Thi,swould include the fur-
     nishing-of heat, elevator service where neecled,
     as well as janitor aervlce.to keep it clean and
     usable. Since It Is under the duty of providing
     these conveniences,    the Commissioners' Court has
     at least the Implied power and authority to con-
     tract therefor. Dodson v. Marshall. Tex.Civ.Aao.
     118 S _W .28 bm     We think. therefore. that the"
     Commissioners' Court has authority to select, con-
     tract with, and ilscharge the above-mentioned dourt
     house employees.      (Emphasis added.)
           While that case dealt primsrlly with the question of
whether the commissioners court or the sheri,ffhad the statutory,
duty and authority to hire and fire the courthouse employees, 'yet
'the court's opinion very clearly holds that there Is the,impLied
power arising from the power granted to the commissioners to contract
for janitor services, etc., to mal.ntalnan Inhabitable courthouse or
                   In accord, Attorney ffeneralOpinion Numbers O-2444
'I$%$ .i%%Ei5     (1944).
          In Attorney General Opinion Number WI-370,(1958),this
office held that a commissioners court has no authority to delegate


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Hon. Henry Wade, page 4’ (M-277)


the maintenance of a countycourthouse to any Individual or firm.
This opinion fa,iledto discuss or recognize the above’cited case
of the Supreme Court, ‘and it Is ,our oljlnionthat It Is contra to
that case holdlng and should be overruled.
           It is our opinion that there is implied authority from
 Section 7 of Article 2351, Vernon’s Civil Statutes, to authorlte
 a commissioners court to contract with an Independent contractor
,to maintain the courthouse and other public buildings within their
 charge.
          In addition to Article 2351, your county (Dallas) is also
subject to Article 2351c, Vernon’s Civil Statutes, and thus the
effect of this statute must also be considered In this opinion; the
pertinent provisions of whloh are quoted as followst
          “Section 1. In all Counties having a pop-
     ulation of more than five hundred thousand (500,
     000), according to the last preceding or any
     future Federal Census, a11 employees necessary to
     the repair, maintenance, and operation of all court
     houses and Criminal Court Buildings shall be uyder
     ;;trtirection and control of the Commlssloners,
          . . . .A11 ‘employees, Including jail guards,
     matrons,’elevator operators and other such em-
     ployees engaged In the operation of the jails in
     such counties shall continue co be employed and
     discharged by the Sheriff ~ln the manner now pro-
     vided by law,.and all employees necessary for the
     proper conduct of the jails or the safekeeping of
     the prisoners shall be subjeat to the exoluslve
     direction and control of the Sheriff of such County.
           “Sec. 2. The fact that the Court of Civil
     Appeals at San Antonio has recently held that all
     courthouse maintenance employees are subject to
     the exclusive direction and control of the Sheriff
     and may be employed and discharged only by the
     Sheriff and the further fact that in the larger
     Counties having separate Civil Courts and the
     Criminal Courts Buildings, such employees have
     been employed and discharged by’the Commisb%;oners’
     Court.as ‘employee’s
                        ,of t,heCounty.and that the
     holding of,the Court of Civil Appeals creates con-
     fusion with respect to the repair and maintenance
     of public buildings in the larger Counties, and In-
     creases the co8.iof operation therein, oreates an
     emergency  . . .

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Hon. Henry Wade, page 5 ,(M-277)


          This statute has an interestinghistory. The Court of
Civil Appeals case referred to in Section 2 is the oase of Anderson
v. Wood, supra, and this statute was enacted while the case was on
appeal to the Texaa Supreme Court. That court apparently did not mention
or consider Article 23510, and it is our opinion that the statute
was not determinativeor controllingof the Issues disposed of by the
court in its opinion. The purpose of this new statute was to provide
the commissionerscourt with an optional way of carrying out its duty
of malntalnlng the public buildings in its charge.
          We agree with your analysis of Article 23510, that this
statute is permissive and not in confliot with Artlole 2351, being
cumulative of the pre-exlstlng law authorizing the oommlsslqners
and not the sheriff to employ persons to carry out the courts
assigned functions of providing and repairing the oourthouse and
other public buildings.
                       SUMMARY               ,,,
          The CommlaslonersCourt of Dallas County, has
     the option to expend county funds in repair, main-
     tenance and operation of oourthouse,s,and other.
     necessary public buildings, by using its own em-
     ployees as prescribed by Artlole 2351c, V.C.S.,
     or by using an independentcontractor as implledly
     authorized by Article 2351, V.C.S.
           Opinion WI?,370is overruled.




Prepared by James C. MoCoy
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
Alfred Walker
Harold Kennedy
Ralph Rash
Nell Wllllams
A. J. CARUBBI, JR.
Executive Assistant
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