                             QBfficeof tip !ZWmep @merat
                                     &ate of IEexae
DAN MORALES                                   August 27,1992
 ATTORSEYGESERAL


     Honorable Jimmy F. Davis                           Opinion No. DM-158
     County-District Attorney
     Castro County Courthouse                           Re: Whether a county commissioners
     Dimmitt, Texas 79027-2689                          court may “transfer” county road and
                                                        bridge employees discharged by an ex
                                                        officio road commissioner to another ex
                                                        officio road commissioner’s precinct and
                                                        continue to pay the employees with funds
                                                        budgeted for the former precinct, and
                                                        related questions (RQ-121)

     Dear Mr. Davis:

             You have requested an opinion from this office concerning the authority of
     ex oficio road commissioners and the commissioners court under chapter 3.A of the
     County Road and Bridge Act, article 6702-1, V.T.C.S (the act). Castro County has
     adopted the optional method for organizing the commissioners court for road
     construction and maintenance responsibilities that chapter 3.A of the act provides.
     Under subchapter A, responsibility for the county roads and bridges rests with the
     individual county commissioners, each of whom acts as ex officio road commissioner
     for his or her particular precinct of the county.’ You inform us that a Castro County
     er o&Wo road commissioner purportedly wishes to effect cost savings in his precinct
     by discharging full-time employees and replacing them with part-time road
     employees ‘kho would not be allowed the same benefits currently afforded road
     employees of the county in the other three precincts.” You note that “[elach full-
     time employee in question is either (1) minority or (2) over forty years of age or (3)


               ‘TIE act sets out provisions detailing the power and duties of commissioners coorts io regard
     to construction and maintenance of their counties roads and bridges. A commissioners court may
     adopt ooe of three optional methods of organization for fulfiient             of its road and bridge
     responsibiities. The act also provides a default system for counties that do not adopt ooe of these
     three methods. For a detailed discussion of both the optional and default methods provided for in the
     act, see Attorney General Opinion JM-784 (1987).




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Honorable Jimmy F. Davis - Page 2               W-158)




recently filed a workers compensation claim.” You state that the ex officio road
commissioner contends that article 6702-1, section 3.003(a), V.T.C.S. “gives him
complete authority to discharge any county employee working in his precinct if the
employee is paid from county road and bridge funds.
        You wish us to address three questions raised by the above situation:
            (1) whether, in the absence of emergency fiscal conditions, an
                er officio road commissioner may terminate full-time
                employees to achieve cost savings under the authority of
                article 6702-l. section 3.003(a), V.T.C.S., without risking
                federal and state discrimination suits based on race, age,
                retaliation for workers’ compensation claims, or other
                protected civil rights;
            (2) whether a commissioners court may reinstate an employee
                discharged by an ex officio road commissioner in a hearing
                before the full commissioners court; and
            (3) whether the commissioners court in a county organized
                under the ex officio road commissioners option can transfer
                employees from one precinct to another and continue
                paying such employees from funds initially budgeted for the
                former precinct, despite the objections of that precinct’s er
                officio road commissioner.

        With regard to your first question, we note the existence of federal and state
laws prohibiting employment discrimination against certain classes of individuals.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. !$§2OOOe(b),2OOOe-2(a);
V.T.C.S. art. 5521k, 3 5.01 (discrimination on the basis of race, color, religion, sex,
or national origin); id. art. 8307~ (retaliatory discharge of employee for Sling claim
for workers’ compensation); 29 U.S.C. 35 623(a), 631; V.T.C.S. art. 522lk, $0 KM(a),
5.01 (discrimination on the basis of age against those 40 years of age or older). We
acknowledge the possibility that firing an individual within one of the protected
classes could give rise to litigation under one of these statutes.* Of course, whether


        2Althougb our discussion focuses on the specitic statutes to which you refer in your brief, it is
applicable to other state and federal statutes prohibiting dkimiiatory    or retaliatory termination of
employees. See, c.g, 29 U.S.C. 5 794 (dismimiiation against individuals with handicaps under any
program or activity receiving federal fmancial assistance).




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Honorable Jimmy F. Davis - Page 3     (IX+158)




a particular employee termination would give rise to a claim under one of these
statutes is a fact question that the opinion process cannot answer.

        We now turn to your question concerning the authority of the county
commissioners court to overturn an ex officio road commissioner’s discharge of an
employee working in that commissioner’s precinct, and reinstate the employee.
Article 6702-1, section 3.003(a) states the following:
              Subject to authorization by the commissioners court, each ex
         officio road commissioner may employ persons for positions in
         the commissioner’s precinct paid from the county road and
         bridge funds. Each ex officio road commissioner may dircharge
         any county employee workingin the commissioner’sprecinct if the
         employee is paid from county road and bridge j2nd.s. Each ex
         officio road commissioner also has the duties of a supervisor of
         public roads as provided by Section 2.009 of this Act.
V.T.C.S. art. 6702-1, Q3.003(a) (emphasis added).

        This office concluded in Attorney General Opinion MW-362 (1981) that “a
single commissioner acting as ex officio road commissioner has power to discharge
an employee” under Acts 1981,67th keg., ch. 691,s 2, at 2585 (former article 6763,
V.T.C.S. now article 6702-l. g 3.003(a)). See &so Attorney General Opinion JM-892
(1988) at 5. However, the reasoning in another Attorney General Opinion, JM-801
(1987), appears to conflict with this conclusion, That opinion concluded that the
county commissioners court retained control over individual hiring decisions of ex
officio road commissioners, so as to make the nepotism statute applicable to the
employment of a county commissioner’s son by another ex officio commissioner. In
so doing, the opinion expressly rejected the argument that the 1981 amendment
limits the county commissioners court’s role in the employment of county road and
bridge workers under the tz officio road commissioner system to authorizing
employee positions. Attorney General Opinion JM-801 at 4. Rather, the opinion
stated that although the amendment was meant to increase the er officio road
commissioners’ power to hire and fire road employees, “[w]e do not believe,
however, that it was intended to create an exception to the general rule that the
commissioners court has general supervision over ex officio road commissioners.”
Id




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Honorable Jimmy F. Davis - Page 4               Rx-158)




        It is true that the specific issue in Attorney General Opinion JM-801
concerned the ex officio road commissioner’s power to hire, rather than to fire,
county road and bridge employees in his or her precinct. However, the conclusion
hinged primarily on the analysis of the legislative intent in enacting the 1981
amendment as a whole, rather than on the sentence dealing with hiring alone. If we
were to follow the reasoning of Attorney General Opinion JM-801, we would be led
to conclude that the commissioners court retained the authority to oversee and
reverse firing decisions of each ex officio road commissioner. ‘However, we believe
that Attorney General Opinion JM-801 incorrectly concluded that “[n]othing in the
statutory language or the legislative history indicates that the 1981 amendment was
intended to prevent the commissioners court from exercising supervision” over an er
officio road commissioners’ individual hiring or fiing decisions. Id. at 5. Rather, we
feel that the statutory language and legislative history of the 1981 amendment
clearly evidence the legislature’s intent to delegate the authority to hire and fire
road and bridge employees to the ex officio commissioner, once the commissioners
court has authorized the employee positions.

        The bill analysis of Senate Bill 1242, Acts 1981, 67th Leg., ch. 691, which
amended former article 6763, V.T.C.S., to include the emphasized language
indicates that one of the bill’s purposes was to empower “the [ex officio road]
commissioners to hire, fire and supervise,. . . those employees that would be paid
from county road and bridge funds.” Although the ex o@io commissioners are
under the direction of the commissioners court in the exercise of most of their
duties,J article 6702-l. section 3.003(a), V.T.C.S., expressly carves out an area of
responsibility delegated to the individual tz officio commissioners. See Attorney
General Opinions JM-1160 (1990) (general powers of the commissioners court are
only the powers and duties expressly conferred on it and defined by the Texas
Constitution and statutes, or reasonably inferred from the grant of a specific power);
MW-362. We conclude that the full commissioners court has no authority to
reinstate a discharged employee paid from county road and bridge funds in an ex
officio road commissioner’s precinct. C$ Zrby v. Sullivan, 737 F.2d 1418 (5th Cir.
1984); Commissioners Court of Shelby Co~nry v. Ross, 809 S.W.2d 754 (Tex. App.-
Tyler 1991 no writ) (ruling that a commissioners court had no authority to suspend
or dismiss a sheriffs deputies); R&en v. Harris COWI@,808 S.W.2d 222 (Tex.

        %he a oflciio road commissioners ‘under the direction of the commissioners court have
charge of the teams, tools, and machinery belonging to the county and   placedin their handsby the
court.’ V.T.C.S. art. 6702-l. 0 3.001(a).




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Honorable Jimmy F. Davis - Page 5              (E&l-158)




App.--Houston (14th Dist.] 1991, no writ) (neither county commissioners court nor
county grievance procedure could require constable to reinstate discharged deputy
constable appointed by constable under contract at will)?

       Your third question addresses whether employees may be “transferred” from
one precinct to another, and, over the objection of the ex officio road commissioner
of the former precinct, be paid with funds originally budgeted for the former
precinct. We understand from your brief that the employees concerned are those
who have been fired by the ex officio road commissioner. Thus your question really
concerns the rehiring of such individuals by other ex officio road commissioners to
work in their precinctss If another BI officio road commissioner wishes to hire such
employees, and the full commissioners court authorizes the positions, we see no
obstacle to their re-employment by the county.

        Moreover, current law would allow the commissioners court to pay these
employees from funds originally budgeted for their former precinct of employment.
Subsection (d) of Local Government Code section 111.010, added in 1989, provides
the foflovfing:

                The commissioners court by order may amend the budget to
           transfer an amount budgeted for one item to another budgeted
           item withoutauthorizingan emergency erpem.

Acts 1989, 71st Leg., ch. 167, 99 1, 2 (emphasis added). Thus, the commissioners
court may transfer funds originally allotted for one budget item to the allotment of
another line item. Furthermore, the court may now do so without finding that an
emergency necessitates the transfer. C’ Acts 1987, 70th Leg., ch. 149, 0 1 (former
Local Gov’t Code $111.010 lacking provision for non-emergency budget transfer).
We note that, in contrast to commissioners in counties adopting the road
superintendent option described in chapter 3.B of article 6702-1, a commissioners


           %e court in Ross explained that ‘[t]he Legislature, which is the source of the commksicmers
ecwts’ legislative authority, has chosen to limit that authority.. . by expressly providing that the
.sheriIl’s deputies serve at the pleasure of the sheriff. . . .’ 809 S.W.2d at 757.

        5We note that an individual cx ojjicio road commissioner, and not the full commissioners
court, would hire the employee, upon commissioners court authorization of the positioe V.T.C.S. art.
670%1,s 3.003(a).




                                              p.   836
Honorable Jimmy F. Davis - Page 6       (cK158)




court under the ex officio commissioner option is not required to expend road and
bridge funds “in each county comrmssl * ‘onerk precinct in proportion to the amount
collected in the precinct.” See Attorney General Opinion JM-784 (1987). Gf course,
orders of the county commissioners court are subject to review by the district court
for abuse of discretion. See 35 D. BROOKS,COUIQTY         AND SPEQAL DISTRICTLAW
0 55.11 (Texas Practice. 1989) (and cases cited therein).

       In conclusion, we find that a county commissioners court in a county
adopting the er officio road commissioner option for road construction and
maintenance responsibilities, V.T.C.S. art. 6702-1, ch. 3, subch. A, lacks authority to
overturn an er officio road commissioner’s discharge of an employee working in that
commissioner’s precinct and paid from county road and bridge funds.

                                 SUMMARY

               A county commissioners court in a county adopting the ez
          officio road commissioner option for road construction and
          maintenance responsibilities, V.T.C.S. art. 6702-1, ch. 3, subch.
          A, lacks authority to overturn an er officio road commissioner’s
          discharge of an employee working in that commissioner’s
          precinct and paid from county road and bridge funds. However,
          the law would 1) allow another ex officio road commissioner to
          hire such a discharged employee, with authorization by the full
          commissioners court; and 2) allow the commissioners court to
          transfer funds originally budgeted for the former precinct to the
          new precinct of employ to cover the employee’s remuneration.
          Local Gov’t Code 5 111.010(d).

                                                  Very truly yours,




                                                  DAN      MORALES
                                                  Attorney General of Texas




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Honorable Jimmy F. Davis - Page 7    (CM-158)




WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Faith S. Steinberg
Assistant Attorney General




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