Hon. J. D. Looney       opiniori lpo. 04388       1
County Auditor          Rar: Bnploym~nt of additionaldeputiesand
Bode County             clerks in Bowie'Countywhile regulardeputies
Boston,Texas            and clerks are on vacation,

Dear Sir:        '.

         Your requestfor'opiuionhas been receivedand carefullycon-
sideredby this department.We quote from your requestas follows:

          "WhereSteno'sand Deputiestakes a vacationforgoneor
     Two Weeks, is the Countyliablefor expensefor extra help
     to carry on their work during their absence?"

        'Article39G2, Vernon'sAnnotatedTexas Civil Statutes,reads
inpart as follows:

          uWheneverany district,county or precinctofficer
     shall.require the serricesof deputies,assistantsor
     clerks in the performanceof his duties~heshall apply to
     t&County Commissioners'    Court of his county for author-
     ity to appointsuch deputies  ; ,ass%stantsor clerks,stat-
     ing by sworn applicationthe nmber needed,the position
     to be filled and the amnmtto be paid. Said application
     shall be accompaniedby a statementshoeingthe probable
     receiptsfron fees, cdssioz~      and compensationto be
     collectedby said office duringthe fiscalyear and the
     probabledisburs~ents which shall includeall salaries
     and expensesof said office3and said ccnrt shall make its
     order authorisingthe appointmentof such deputies,as-
     sistantsand clerksand fix the caapensationto be paid
     then withinthe linitationshereinprescribedand deter-
     nine the numberto be appointedas in the discretionof
     said courtlnaybeproper;providedthat in~no case shall
     the Commissioners'  Court or anynember thereofattsanpt  to
     influencethe appoinbnentof any personas deputy,as-
     sistantor clerk in any office. Uponthe entry of such
     order the officersapplying,  for suchassistants,deputies
     or clerksshsll be authoriaedto appointtheta;provided
     that said compensationshall not exceed the na&mau amount
     hereinafterSethout.    The compensationwhich may be allowed
     to the deputies,assistantsor clerksabove naned for their
     servicesshall be a reasonableone, not to exceed the fol-
     lowing snlountsr. . .n
Hon. J. D. Looney,page 2 (O-5388)



             We quote from Opinionlo. O-l&l of this departmentas followsr

         "We are unable to find any statutedealingwith the sub-,
    ject of vacationsamong counti officials. The same is true
    of deputies,assistantsor other employeesauthorisedto per-
    form servicesunder the principalof any public office,with
    the etieptionof Ai-title    1583b, Penal Code of Texas,1925,
    which providesthat every regularly     assigned jailer, jail
    guard, or jail matron at any county jail in any city of more
    than twenty-fivethousand(25,000)inhabitantsshall be allowed
    fifteen (15;) days vacation, in each year with pay, not more
    than two (2) members to be on vacationat the sametime.

           %xmnissionersCourts are courtsof generaljurisdiction
    when actingwithin the sphere of the powers and duties confer-
    red upon thmu, however,they are courts of limitedjurisdiction
    in that their authorityextendsorilyto matterspertainingto
    the generalwelfare of their respectivecountiesand that their
    powers are only those expresslyor impliedlyconferredupon
    them by law -- that is, by the Constitutionand statutesof the
    State.    11 Tex. Jur. para. 37, p. 564.

         "The law imposesupon each electiveofficialof a county
    certaindutiesconnectedwith his offioewhich he is obligated
    to faithfullydischargeand perform. He is responsiblefor cer-
    tain acts of his deputies;and in the matter of attendingto
    and performingthe duties of his office,the law holds him re-
    sponsible. Kany dutiesconnectedwith a public officemust
    necessarilybe performedby olericalworkers and assistants,
    who consequently perform their duties solelyunder the direction
    of the principalin office. Especiallyis this true where their
    dutiesare not regulatedby statute.

         "The status of the various deputies,assistantsor clerks,
    as providedin the above-quotedstatute,are varied. ,Sheriff
    deputies,constabledeputiesand all county clerk deputiesare
    consideredpublic officers. In a true sense, they performgov-
    ernmentalfunctions,and where their duties are not prescribed
    or regulatedby statute,they performa public service,sharing
    the~responsibility of officewith theirprincipal. Such offi-
    cers stand on a footingdifferentfrom mere countyemployees--
    the servicesand employmentof the formerbeing authorizedby
    law, the latterbeing based upon contractwith the conmissioners
    COUI”L


        "An examinationof the acts of the variouslegislaturesfor
    severalyears past disclosesthat the generalappropriation bill
    provisions,as affectingState mriployees,permit twelve (12)
    working day vacations,when agreed to betweenthe officialand
Hon. J. D. Looney,page 3   (O-5388)


    his enrployees.If it can be said that the State has
    adopted~apolicy of allowingpaid,vacations,  a law which
    requiresa public officerto serve a year beforebeing
    allowedsuch vacationwould, in our opinion,contravene
    such declaredpolicy, deprivingthe governmentoftbetter
    and more efficientservice,which is the only principle
    upon which such vacationscan be sustained.

         "Such matters of generaloffice routineor mode in
    which a public officer,with the help.ofhis authorized
    deputies,assistantsand clerks,performsthe duties'of
    his office,where not regulatedby statute,are not vested
    in the ccezmissionerscourt. We cannothelp but view the
    matter of regulationof hours ,andvacationsof public offi-
    cers in all governmentaland politicalunits of the govem-
    ment as being solely-oneof executive,adninistrative~dis-
    cretion,~subjedt to be withdrawnorcontrolledby the Leg-
    islature.

          "Vacationsare closelyidentifiedwith generaladnin-
     istrativepowers vested in the holder of a public office.
     The only principleupon which vacationsare permitted,inso-
     far as a declaredpolicy of the governmentwould authorize
     same, appearsgroundedon a settledpolicy of employeesor
     public officersenteringinto an agreementwith their depart-
     mental or.officehead, under the latter'ssupervisionand
     direction.

          "As vacationsdirectlyaffectthe dischargingof the
     dutiesof a particularoffice,the responsibility for which
     reposesin the principalof such office,the Commissioners
     Court, being nowise chargedwith such responsibility,
                                                        would
     not be authorized,in the absenceof legislativeauthority,
     to assume controland attemptto regulatethe same.

          "It is, therefore,the opinionof this departmentthat
     the commissionerscourt of a countydoes not have the au-
     thorityto pass an order providingthat no vacationswith pay
     shall be allowedany mnployeesof the county or deputiesor
     assis'tantsof county officersuntil and unless such persons
     have been mnployedfor a period of one year. Such order,be-
     ing beyond the scope of power and authorityvested in the
     CoznzissionersCourt, is ultra vires and void."

         We quote from OpinionNo. O-1876 of this departmentas follrms:

          "You are respectfullyadvisedthat it is the opinionof
     this departmentthat the county clerk has the authorityto
     pay a deputyhis regularsalary during the absenceof'such
     deputyfrom eaploymentdue to sicknessor vacationfor a rea-
     sonablelength of time."
Hon. J. D. Looney,page 4   (O-5388)



         We encloseherewithcopies of OpinionsNos. O-l&l and O-1876.

          OpinionNo. 04620 of this ~p@$wpt holds that the countyattorney
of Walker County,Texas,has no authorityto eplploya stenographerand pay
her a salaryas an authorizedexpenseout of his fees of office. This opinion
definesthe term "stenographer.*'

          OpinionNo. O-1874 of this department,
                                             holds that when the countyattor-
ney of LibertyCounty,Texas, ccmplieswith Article 3902, V.A.C.S.,a l'clerkn
maybe appointedfor such county attorney.

          OpinionNo. O-1930 of this departmentholds that neitherthe county
attorneynor the commissioners' court has any statutoryauthorityto employa
stenographerfor the countyattorneyof Johnson County,Texas, and pay for same
out of countyfunds. This opinionfurtherholds that the commissioners'  court
of~JohnsonCounty,Texas, a salary county,having a populationin excessof
20,000 inhabitantsaccordingto the last precedingFederalCensus,may author-
ize the employmentof a stenographerby the county judge and pay for such serv-
ices out of the generalfund of the~countyto an amount not to exceedTwelve
HundredDollars ($1200.00)per year.

          OpinionNo. O-4776 of this departmentholds that the commissioners'
court of sectorCounty,Texas, a fee county,having a populationof less than
20,000 inhabitantsaccordingto the last precedingFederalCensus,could not
employa stenographerfor the county judge or the conmissionerscourt, This
opinionholds howeverthat the ccmmissi~ners~ court of Ector County could au-
thorizethe county judge of such countyto appointa clerk.

         We encloseherewithcopies of OpinionsNos. o-1620,O-187& O-1930
and O-4776.

          Subdivision(a) of Section13 of Article3912e, Vernon'sAnnotated
Texas Civil Statutes,applicableto countieshaving a populationof 20,000in-
habitantsor.moreand less than 190,000inhabitants,accordingto the last pre-
cedingFederalCensus,is applicableto Bowie County,Texas, a countywithin
the above populationbrackets,and said subdivisionreads as follows:

         "The ccmmissionerslcourt may authorizethe employmentof
    a stenographerby the countyjudge and pay for such servicesout
    of the generalfund of the county to an amount not to exceed
    Twelve Hundred ($1200.00)Dollarsper year."

          It is our opinionthat the only stenographerauthorizedby law for
any Bowie County officialis the stenographerfor the county judge described
in the next above quoted subdivision,No stenographercould be.employedby any
county officialof Bowie County exceptfor the county judge. The sum of
$1200.00per annum is the limit which could be paid to the Bowie CountyJudge's
stenographer.It is also discretionary  with the ccaunissioners'
                                                              court of Bowie
County as to whetherthey will authorizethe county judge to employ such steno-
graph-.
Hon. J. D. Looney,page 5   (O-5388)



          It is our opinionthat it is discretionary  with the commissioners'
court as to whether it will authorizethe employmentof extra or additional
deputies,assistantsand clerksfor the various countyofficialsduring the
time the regulardeputies,assistantsand clerksmay be on vacations. In
the absenceof authorizationof the canmissioners court as outlinedby Arti-
cle~3902,V.A.C.S.,supra, such extra help could not be paid for from the
Officers'Salary Fund of the county. On the other hand if properlyauthor-
ized by the conanissioners~court under Article 3902, V.A.C.S.,supra, such
additionaldeputies,clerksand assistantswould be entitledto be paid from
the Officers'Salary Fund of your county.

                                        Very truly yours,

                                        ATTOEEEYGENE&U,OF TEEAS

                                        By /s/ Wm. J. Fanning
                                        Wm. J, Fanning,Assistant

@PROVEDJUN 24, 19b3
/s/ Grover Sellers
FIBSTASSISTANTATTOBliEYGEEERAL

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