     OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

     JOHN      CORNYN




                                                 April 13,200l



The Honorable Bruce Isaacks                               Opinion No. JC-0369
Denton County Criminal District Attorney
127 North Woodrow Lane                                    Re: Whether a commissioners court is authorized
Denton, Texas 76205                                       to establish certain policies restricting employees
                                                          associations for whose benefit payroll deductions
                                                          for membership dues may be made and related
                                                          question (RQ-03 14-JC)

Dear Mr. Isaacks:

         Pursuant to section 155 .OOl(b) of the Local Government Code, a county commissioners
court, on the request of a county employee, may authorize payroll deductions from the employee’s
wages or salary to pay membership dues in a labor union or a bona fide employees association. You
ask whether a commissioners        court is authorized to establish policies restricting employees
associations, for whose benefit such payroll deductions may be made, to those associations having
a specified minimum membership or of specified duration.’ We conclude in the affirmative. You
also ask this office to define a “bona fide employees association.” Request Letter, supra note 1, at
1. We conclude that a “bona fide employees association,” as used in section 155.001(b) of the Local
Government Code, means an organization of employees, formed in good faith to promote a common
purpose.

         It is well-established that a county commissioners court can exercise only such powers as the
constitution or the statutes specifically confer. See TEX. CONST. art. V, 0 18; Canales v. Laughlin,
214 S.W.2d 45 1,453 (Tex. 1948). However, it is equally well-established that “[wlhere a right is
conferred or obligation imposed on said court, it has implied authority to exercise a broad discretion
to accomplish the purposes intended.” Anderson v. Wood, 152 S.W.2d 1084,1085 (Tex. 1941).

         Neither section 155 .OOl of the Local Government Code or any other provision that we have
found expressly authorizes a commissioners        court to establish policies regarding employees
associations eligible for the payroll deduction.     Section 155.001 (b)( 1) authorizing the payroll
deduction simply provides that:




           ‘Letter from Honorable Bruce Isaacks, Denton County Criminal District Attorney, to Honorable JohnCornyn,
Attorney    General of Texas (Nov. 16,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Bruce Isaacks           - Page 2




                            In a county with a population of 20,000 or more,2 the
                   commissioners    court, on the request of a county employee, may
                   authorize a payroll deduction to be made from the employee’s wages
                   or salary for:

                              (1) payment of membership              dues in a labor union or a
                   bona fide employees association;




TEX.Lot. GOV’TCODEANN. 8 155.001(b)(l) (V emon Supp. 2001) (emphasis added); see also Tex.
Att’y Gen. Op. No. M-334 (1969) ( commissioners court may not authorize payroll deductions for
union dues without express authority).

         But, as you note, the commissioners      court’s authority to establish a payroll deduction
program under section 155.001 is discretionary.           Under the permissive language of section
 155 .OO1(b), a commissioners court may decline to establish a payroll deduction program. See TEX.
Lot. GOV’T CODE ANN. § 155.001(b)(l) (V emon Supp. 2001) (commissioners                  court “may”
authorize deduction); TEX.GOV’T CODE ANN. 8 3 11 .016( 1) (Vernon 1998) (Code Construction Act)
(unless context requires different construction, “‘[m-Jay’ creates discretionary authority or grants
permission or a power”). In fact, prior to its codification in the Local Government Code, the source
law for section 155.001 (b) specifically provided that “[p]articipation in the program authorized by
this Act is voluntary on the part of any county employee and the county.” See Act of May 28,1969,
61st Leg., R.S., ch. 419, 1969 Tex. Gen. Laws 1380, repealed by Act of May 1, 1987,7Oth Leg.,
R.S., ch. 149,1987 Tex. Gen. Laws 707,937,1307 (formerly TEX.&V.           CIV. STATANN.   art. 2372h-
4 5 (d)). This provision was omitted during the statute’s codification as unnecessary given that it
was clear from the remaining statutory language that participation was voluntary in that deductions
can only be made “on the request” of the employee, and the commissioners court “may,” but is not
required to, authorize the deduction. See TEX. LOC. GOV’T CODE ANN. @ 155 .OOl revisor’s note
(Vernon 1999). In short, a county commissioners court is authorized, but not required to establish
a payroll deduction program.

         We believe the commissioners court’s discretion to establish or, more accurately, not to
establish, a payroll deduction program encompasses the authority to establish such a program subject ’
to standards reasonably necessary to implement the program in the county. See Anderson, 152
S.W.2d at 1085 (where right is conferred, commissioners court has implied authority to exercise
broad discretion to accomplish intended purpose); see also City of Charlotte v. Local 660, Int ‘IAss ‘n
of Firefighters, 426 U.S. 283,286 (1976) (because right to dues checkoff is not a right entitled to
special treatment under Equal Protection Clause, city’s refusal to withhold union dues must only
meet reasonableness standard to pass constitutional scrutiny); Toledo Area AFL-CIO Council v.


          2Senate Bill 134, which is pending before the legislature, would allow the commissioners   court in any county
to authorize the payroll deductions. See Tex. S.B. 134,77th Leg., R.S. (2001).
The Honorable Bruce Isaacks           - Page 3




Pizza, 154 F.3d 307, 322-23 (6th Cir. 1998) (because union and union officials have no
constitutional right to dues checkoff, equal protection challenge to Ohio’s wage checkoff ban must
be evaluated under rational basis standard, i.e., “whether it is rationally related to any conceivable
legitimate state interest”). A county policy requiring that an employees association have a minimum
membership or that it be in existence for a minimum period of time before it is eligible for payroll
deduction, we believe, meets this test. It is facially neutral. See City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432,440-41(1985)     (when law apportions benefits or burdens on basis of classification
among citizens, it will be subject to strict scrutiny if classification involves suspect class or affects
fundamental rights). And, although you do not tell us, it is presumably designed to limit the
deductions to recognized or established entities representing the interests of more than a few county
employees or to avoid the administrative and financial burden of processing deductions for every
organization requested by employees, or both.3 See also City of Charlotte, 426 U.S. at 288 (city’s
refusal to provide dues checkoff for labor union while allowing such checkoff for insurance and
savings programs and certain charitable organizations, a “reasonable method for providing the
benefit of withholding to employees in their status as employees, while limiting the number of
instances of withholding and the financial and administrative burdens attendant thereon”).

         While we conclude that the eligible employees association restrictions you ask about are
facially permissible, we caution that such restrictions may not be applied as to unconstitutionally
discriminate against particular organizations or employees or to infringe on the exercise of
constitutionally protected rights. See City of Cleburne, 473 U.S. at 440-4 1. Furthermore, we cannot
and do not express an opinion with respect to restrictions other than these you specifically ask about.

        You next ask what constitutes a “bona fide employees association” and suggest that it is
synonymous with “labor organization.” See Request Letter, supra note 1, at 2. We disagree. We
construe the phrase “bona fide employees association” as used in section 155.001 (b) of the Local
Government Code to mean an organization of employees, formed in good faith to promote a
common purpose. We believe the meaning of this phrase to be broader than that of a “labor union”
or “labor organization.”

         Neither section 155.001 nor any other statutory provision that we have found defines the
terms “bona fide employees association.” See TEX. Lot. GOV’T CODE ANN. 8 155.001 (Vernon
Supp. 2001); see also id. 9 141.008 (Vernon 1999) (authorizing municipalities with population in
excess of 10,000 to deduct from employee payroll membership dues for a “bona fide employees[]
association”); id. 9 174.05 l(c) (authorizing election to establish collective bargaining for fire


           3Butsee Renken v. Compton City Sch. Dist., 207 Cal. App. 2d 106,114, 24 Cal. Rptr. 347,35 1(1962) (holding
invalid regulation limiting payroll deduction only if at least 50% of employees eligible for membership in association
applying for deduction so request because restriction not founded on “reasonable and substantial basis for classification
with respect to” statutes authorizing payroll deductions for dues to bona fide employees association); Sacramento
County Employees Org. v. County of Sacramento, 28 Cal. App. 3d 424,433, 104 Cal. Rptr. 619,625 (1972) (holding
that statutory provision authorizing public agency to deal with “recognized” employee organization sufficient authority
for county to restrict payroll deduction of dues to recognized employee organizations and noting that this statutory basis
for classification did not exist when Renken was decided).
The Honorable Bruce Isaacks           - Page 4




fighters, police officers, or both, if majority of affected employees “favor representation by an
employees association”). Nor have we found a judicial construction of these terms. Words and
phrases that have acquired a technical or particular meaning, whether by legislative definition
or otherwise, are to be construed accordingly; otherwise they are to be read in context and construed
according to the rules of grammar and common usage. See TEX. GOV'T CODE ANN. 9 311 .Oll
(Vernon 1998) (Code Construction Act). The ordinary meaning of the term “association” is very
broad: “A body of persons who have combined to execute a common purpose or advance a comrnon
cause; the whole organization which they form to effect their purpose; a society.” I OXFORD
ENGLISHDICTIONARY~~8 (2ded.1989); accord BLACK'SLAWDIC'~IONARY 119(7thed.l999)(“[a]
gathering of people for a common purpose; the persons so joined.“). “Bona fide,” a Latin phrase,
simply means “in good faith; without fraud or deceit” or “[slincere; genuine.” BLACK'S LAW
DICTIONARY 168 (7th ed. 1999).

         By definition and as used in section 155.001, we believe the phrase “ bona fide employees
association” may encompass, but is not synonymous with, the terms “labor union” or “labor
organization.” See TEX.LOC. GOV'T CODE ANN. 5 15 1.OOl(b)( 1) (Vernon Supp. 2001); see also id.
85 141.008 (Vernon 1999) (authorizing payroll deductions for only “bona fide employees[]
association”); 174.05 1(c) (authorizing election to establish collective bargaining for fire fighters,
police officers, or both, if majority of affected employees “favor representation by an employees
association”).   The legislature has defined both “labor union” and “labor organization.” A “labor
union,” is a “an incorporated or unincorporated association, group, union, . . . of working persons
organized and existing to protect those persons and to improve their working conditions, wages, or
employment relationships, but does not include an organization not commonly regarded as a labor
union.” TEX.LAB. CODEANN. $8 101.051, .101(3) (V emon 1996). A “labor organization” is “any
organization in which employees participate and that exists in whole or in part to deal with one or
more employers concerning grievances, labor disputes, wages, hours of employment, or working
conditions.” TEX.GOV’TCODEANN.§~~~.OO~ (Vemon1994).4 Insection155.001(b)oftheLocal
Government Code, the legislature authorizes payroll deductions for dues to “a labor union or a bona
fide employees association.”      Under established principles of statutory construction, we must
presume an “employees association” to mean something different than a “labor union” because
otherwise the former phrase would be superfluous. See Cameron v. Terre11 & Garrett, Inc., 618
S.W.2d 535, 540 (Tex. 1981) (“The legislature is never presumed to have done a useless act. . . .
[Elvery word of a statute must be presumed to have been used for a purpose. . . . Likewise, we
believe every word excluded from a statute must also be presumed to have been excluded for a
purpose.“). Similarly, we must presume “employees association” to mean something different than
“labor organization” because if the legislature had intended that meaning, it would have used these



          4Texas public employees in general have no right to bargain collectively. See TEX.GOV’T CODEANN.9617.002
(Vernon 1994) (official of state or political subdivision of state may not enter into collective bargaining contract with
labor organization   regarding wages, hours, or conditions of public employees’ employment).             Such prohibition,
however, does not impair public employees’ right “to present grievances concerning their wages, hours of employment,
or conditions of work either individually     or through a representative that does not claim the right to strike.” Id.
$ 617.005.
The Honorable Bruce Isaacks    - Page 5




terms. See id. Thus, while a particular employees association may qualify as a labor organization
or a labor union, every employees association by definition is not a “labor union” or a “labor
organization.” Cf: NLRB v. Thompson Ramo Wooldridge, Inc., 305 F.2d 807,809-10,811          n.8 (7th
Cir. 1962) (concluding that because a function of an employees association was presentation of
individual grievances to employer organization, NLRB was justified in finding that association was
a “labor organization” as defined in the National Labor Relations Act).
The Honorable Bruce Isaacks    - Page 6




                                      SUMMARY

                         A commissioners court is authorized to establish a policy
               restricting the employees associations for whose benefit payroll
               deductions for membership        dues may be made under section
               155.001 (b) of the Texas Local Government Code to those employees
               associations having a specified minimum membership or of specified
               duration. The phrase “bona fide employees association,” as used in
               section 155.001 (b), means an organization of employees, formed in
               good faith to promote a common purpose and is broader than a “labor
               union” or a “labor organization.”

                                            You    very truly



                                           4 l
                                            JOHN
                                                  CR-f-

                                                     CORNYN
                                            Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General - Opinion Committee
