                         July 10, 1989



Honorable Jimmy F. Davis             Opinion No.   JM-1070
Castro County District Attorney
Castro County Courthouse             Re: Whether a commission-
Dimmitt, Texas 79027-2689            ers court is authorized
                                     to set working hours and
                                     holidays for road employ-
                                     ees in a county that has
                                     ex officio road commis-
                                     sioners (RQ-1710)

Dear Mr.    Davis:

     You ask whether   the commissioners   court of Castro
County is authorized to establish working hours and holidays
for road employees in a county that has ex officio      road
commissioners.

     You furnish us with a copy of the personnel           policy
adopted by the commissioners   court in 1983.    The       policy
adopted by the court applies   "to all employees of        Castro
County," and provides the following work schedule:

              1. The normal work week shall consist of
           40 hours: eight hours per day, Monday through
           Friday.

              2. The responsible elected official will
           determine the reporting time and leaving time
           for the employees  so as to achieve maximum
           effectiveness of the county.

     You advise that since the Fair Labor Standards Act was
held applicable  to counties,1 the commissioners   court   in
1986 adopted a policy that the county would avoid overtime
whenever possible and use compensatory time when feasible.
See Attorney  General Opinion JM-733     (1987).  Additional



     1.  See Garcia v. San Antonio Metro. Transit Auth., 469
U.S. 528 (1985).




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Honorable Jimmy F. Davis - Page 2     (JM-1070)




information furnished by you reflects that the commissioners
court on January  12, 1987, and again on January 9, 1989,
adopted by resolution the system of organizing the commis-
sioners court for road construction that constitutes members
of the court as ex officio road commissioners.       V.T.C.S.
art. 6702-1, 55 3.001-3.004.  you advise that a question has
arisen concerning the authority  of the commissioners   court
to set the "normal work week" for road employees.

     Section 3.001(a) provides:

            (a) In all    counties [operating   under
        sections 3.001-3.0041 the members of the com-
        missioners court are ex officio road commis-
        sioners of their respective precincts     and
        under the direction     of the commissioners
        court have charge of the teams, tools, and
        machinery belonging to the county and placed
        in their hands by the court.      They shall
        superintend the laying out of new roads, the
        making or changing of roads, and the building
        of bridges under rules adooted bv the court.
        (Emphasis added.)

     Additional authority  granted a member  of the court
serving as an ex officio road commissioner is set forth in
section 3.003(a), providing:

            (a) Subject to authorization   bv the com-
        missioners court, each ex officio road com-
        missioner may employ persons for positions in
        the commissioner's   precinct paid from the
        county road and bridge      funds.    Each   ex
        officio road commissioner   may discharge   any
        county employee working in the commissioner's
        precinct if the employee is paid from county
        road and bridge funds. Each ex officio     road
        commissioner also has the duties of a super-
        visor of public roads as provided by Section
        2.009 of this Act.

     Section 2.009 authorizes a commissioner serving as an
ex officio road commissioner  to supervise the public  roads
in his respective precinct.   The commissioner shall report
to each regular term of the commissioners court the condi-
tion of the roads and bridges in his precinct, the amount of
money in the hands of overseers subject to being expended on
roads, and the name of every overseer who has failed to
perform his duty.




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Honorable Jimmy F. Davis - Page 3 (JM-1070)




     Article V, section 18, of the Texas Constitution     pro-
vides that the commissioners court "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."    In the exercise of power
conferred  upon the commissioners     court, the court has
implied authority to exercise a broad discretion to accom-
plish the purposes intended. Cosbv v. Countv Commissioners
of Randall   Countv, 712 S.W.2d 246   (Tex. App. - Amarillo
1986, writ ref'd n.r.e.). See aenerallv Attorney       General
Opinion JM-801 (1987) (nepotism statute prevents ex officio
road commissioner     from hiring    son of    another    road
commissioner).

     Section 2.002 of article   6702-l provides in   pertinent
part that:

           (a) The commissioners court shall:

           (1) order that public   roads be laid   out,
        opened,   discontinued,    or   altered    when
        necessary
           . . . . [and1

           (b) The commissioners court may:

           (1) make and enforce all reasonable   and
        necessary rules and orders for the construc-
        tion and maintenance  of public roads except
        as prohibited by law;

            (2) hire the labor     and purchase the
        machinery and equipment needed to construct
        and maintain public roads.

     In Brooks, Countv and Special District Law, 36       Tex.
Pratt. 5 40.7, at 405 (1989), the following comment is    made
relative to the foregoing provisions of section 2.002:

        These provisions  essentially mean that the
        county roads are open, constructed,        and
        maintained by the commissioners   court as a
        whole and not by individual county commis-
        sioners.    However,   county   commissioners
        serving as ex officio road commissioners   may
        employ personnel for their precinct    subject
        to commissioners  court approval.    [V.T.C.S.
        art. 6702-1, g 3.003(a).]     Otherwise,   all
        road contracts, purchases  of road' equipment




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Honorable Jimmy F. Davis - Page 4 (JM-1070)




        and materials, and the employment of person-
        nel are consummated by actions of the commis-
        sioners court acting as a body. In practice,
        however, individual  commissioners have sub-
        stantial influence over contracts    awarded,
        personnel hired, and the purchase    of road
        material.  They do not, however, have any
        authority to legally bind the county for the
        most part.

           The    commissioners    court    can   employ
        personnel, execute contracts,      and purchase
        equipment for a commissioner's precinct     over
        his objection.      [Attorney General    Opinion
        V-1424 (1952).] The employment of road per-
        sonnel and the execution      of road contracts
        must be acted upon by the commissioners court
        as a body and is an authority that cannot be
        delegated   to another such as the county
        judge.   [Attorney    General    Opinion   V-532
        (1948).] In short, even though each county
        commissioner is responsible for supervising
        road work in his precinct and keeping himself
        informed as to road conditions, he generally
        has little further authority.

     -The commissioners court sets the amount of compensation
for county and precinct employees paid wholly from county
funds. Local Gov't Code g 152.011 (formerly V.T.C.S.     art.
3912k, § 1). In Attorney    General Opinion MW-438 (1982) it
was concluded that sick leave benefits, vacation entitlement
and paid holidays      for  county and precinct     employees
constitute a form of compensation (under then article 3912k,
V.T.C.S.) and that the determination   of same is within   the
sole province of the commissioners court.

     In Attorney General Opinion JM-182 (1984) it was con-
cluded that the commissioners    court is not authorized    to
establish working hours for elected county officials.       In
that opinion it was stated that there is no general     state
law which dictates office hours or the work week to be
observed by county officials and employees. While there     is
no express state law authorizing the commissioners court to
determine the working hours for road employees, we believe
the control granted the commissioners court in the matters
of hiring road employees, setting compensation,   determining
sick leave, vacation entitlement   and paid holidays for all
county and precinct employees necessarily gives the commis-
sioners court implied authority to establish working    hours
and holidays for road employees.




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Honorable Jimmy F. Davis - Page 5    (JM-1070)




                       SUMMARY

             The commissioners court is authorized to
        determine the working hours and holidays   for
        road employees  in a county that operates
        under the ex officio road       commissioners
        system pursuant to     section 3.001(a)     of
        article 6702-1, V.T.C.S.

                                    dzyh
                                             MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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