                   THE      ATTORNEY           GENERAL
                                OF   TEXAS


                                April    20,   1990




Honorable  Jack Skeen, Jr.              Opinion   No.   JM-1160
Criminal  District Attorney
Smith County Courthouse                 Re:      Authority  of a county to
Tyler, Texas     75202                  make   exceptions  to its standard
                                        sick   leave policy   (RQ-1938)

Dear   Mr.    Skeen:

       You ask    the    following   questions:

                 1. May a  county   grant additional    sick
             leave to a county employee who has   exhausted
             his allowed sick leave?

                2. May a county    permit county  employees
             to transfer or pool   their unused sick    leave
             for the   benefit of  another county   employee
             who has exhausted  his allowed sick leave?

      Section 152.011 of the Local Government              Code,   formerly
article 3912k, V.T.C.S.,  provides:

                 The commissioners  court of a county    shall
             set the    amount of  the compensation,    office
             and travel expenses,   and all other allowances
             for   county     and  precinct    officers     and
             employees   who   are paid wholly    from  county
             funds.

      This office    has   concluded  that   sick    leave benefits
constitute   "compensation    . . . and all other allowances"    for
the purpose of section      152.011.   Attorney   General  Opinions
JM-910   (1988); H-860 (1976).

      Your first question concerns the granting          of additional
sick leave to a county       employee who has exhausted       his    sick
leave.   Since sick leave is       considered   a form of     compensa-
tion or allowance,     there would appear to be a constitutional
problem   in granting   sick leave retroactively.        Article     III,
section 53,     of the   Texas Constitution      prohibits    a county
from making "any extra       compensation,    fee or allowance"       for
county employees    retroactive.     See Attorney    General     Opinion
JM-1113   (1989).
Honorable   Jack   Skeen,   Jr.   - Page   2   (JM-1160)




      Section 152.013(a)     of    the Local    Government     Code    pro-
vides    that   the   commissioners      court    shall    set    "salary,
expenses,    and other allowances     of elected county or precinct
officers"    at  a regular meeting        of   the court     during     the
regular budget hearing       and adoption proceedings.           However,
opinions   of this office have concluded        that compensation       for
county employees      may   be   set    at any    time   of    the   year.
Attorney General      Opinions    JM-1113    (1989);    JM-839     (1988);
H-11 (1973).     We   believe that the       commissioners     court    may
set guidelines     for additional    sick leave for county         employ-
ees to become     effective    prospectively     any   time during      the
year.    The fact that one      employee may receive greater           sick
leave than another employee         would appear to be       permissible
so long    as   the   additional    benefits     conferred     under    the
guidelines    are not dependent     upon factors that might consti-
tute an abuse of      discretion.     w    Attorney    General     Opinion
JM-910, suvra.

      In your second   question you ask      whether a county    may
permit its employees   to transfer    or pool their annual      sick
leave for the   benefit of    another employee.      Commissioners
courts may exercise   only such powers as the constitution         or
the statutes have specifically     conferred   upon them, or which
may be reasonably   inferred   from a specific power.       Canales
v. Lauahlin,  214 S.W.Zd 451 (Tex. 1948); Tex. Const. art. V,
5 19.

      Article   6252-8e,   V.T.C.S.,   which   became    effective
September   1, 1989, provides    for the creation   and  operation
of a sick leave pool for state employees.       However,  there is
no statutory   provision  authorizing   the implementation    of   a
sick leave pool for county employees.

      The question   is presented   whether it may be     reasonably
inferred from the authority     granted commissioners     courts    to
set compensation   and other allowances     that the court has the
power to grant employees      permission   to transfer   sick    leave
into a pool for the benefit of an employee who has exhausted
his sick leave.    A   sick leave pool     does more than     provide
compensation   to  employees.     It provides   an   administrative
structure   for transferring   sick   leave from one employee       to
another, and thus     is not authorized     by section 152.011      of
the Local Government    Code.

      Attorney  General Opinion JM-1019   (1989)           concluded     that
absent an    authorization  by  the legislature             permitting     an
official to donate a portion of his       salary           to the    county,




                                      p. 6120
Honorable     Jack   Skeen,   Jr.    - Page   3   (JM-1160)




a county commissioner    may not    make such    a            contribution.1
But see Local Gov't    Code 5 152.002     (statute            adopted    after
issuance of Attorney   General    Opinion JM-1019             allows   county
to accept donation   of officer's   salary).

      We conclude   that a commissioners   court, absent              legisla-
tive authorization,    may not   grant county employees                permis-
sion to   transfer   a portion    of their   sick leave               for   the
benefit of another county employee.

                                 SUMMARY

                  The commissioners    court    may set   guide-
            lines for    additional   sick   leave for     county
            employees   to become effective      prospectively.
            The commissioners     court    may   not   authorize
            county    employees   to   transfer    unused    sick
            leave into a sick leave pool for the         benefit
            of other emnlovees.




                                                         MATTOX
                                              Attorney    General   of Texas

MARY KELLER
First Assistant       Attorney      General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney           General

RENEA HICKS
Special Assistant       Attorney      General

RICK GILPIN
Chairman,  Opinion      Committee

Prepared by Tom G. Davis
Assistant Attorney General




      1.  Section 152.052 of the    Local Government   Code   pro-
vides that if an elected    county officer files an     affidavit
with the county   clerk stating that     the officer elects    not
to be paid for   the officer's   services,   the county   payroll
officer may not issue a paycheck to the officer.



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