                      August 31, 1970

Honorable Jw Reeweber         Opinion No. M-678
County Attorney
Harris County Courthouse      Re:    May Harris County create
Houeton, Texas 77002                 the position of executive
                                     assistant to the four County
                                     Commissioners under the
                                     stated fact situation and
Dear Mr. Resweber:                   related questiona.

          Your recent request for an opinion asks   for   an
answer to questions as follows:

          "1. Is the Commissioners Court authorized
     to create the position of executive afssistantto
     the four (4) County Commissioners (and provide
     for a salary of $14.400.00 per year and an auto-
     mobile and other equilxaentfor much porition) at
     thin time without ruch position having be&n pre-      ""
     viously approved and eatabliahed in the 1910
     County Budget?

          ”2 . Could such action legally be taken by
     the Conunisrrioners
                       Court without the matter having
     been specifically included in the written notice
     of the meeting at which such action was taken?

          “3.  Can Harrie County legally expend funds
     for the payment of the salary and automobile
     (and equipnent) prwided for as indicated in "1"
     and “2” above?"

           In answer to your fir8t question, it is our opinion
that the Conmimuioners Court is authorized to hire an "execu-
tive amrL8tant" and prwida for him indicated eguipmenh for
tha purpose of performing adminimtrative and executive func-
tion8 and dutias a@ an employee. So’ long as thm dimamtimuy

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Honorable Joe Resweber, page 2        (M-678)


and policy making functions of the coanniaaioneraare not dela-
gated to the employees, no legal inhibition is involved.

          In 15 Tex.Jur.Zd 277, Counties, Section 48, it is
stated:

          "In the absence of an enabling statute the
     powers of a commiaaionera' court that involve
     exercise of judgment and discretion cannot be
     delegated. . . ."

          This office has previously held, in Opinion O-1175,
(1939) that there is no authority for the office of "w
aentative" of the commissioners court: however, where the
Dallas County Commissioners Court hired an engineering firm to
assist the county road engineer, an employee, the court said:
          II.. . It is further well settled that the Com-
     missioners' Court may employ persona to assist even
     an officer in the performance of statutory duties:
     . . . or to perform services which do not involve
     the exercise of any qwernmental function: . . ."
     Hill v. Sterrett, 252 S.W.Zd 766 (Tex.Civ.App. 1952,
     Ref. N.R.E.) citing Terre11 v. Greene, 88 Tex. 539,
     31 S.W. 631 and Strinser  v. Franklin Countv, 123 S.W.
     1168 (Tex.Civ.App. 1909, no writ.).

          The general rule is that counties have implied
authority to employ agents and servants. 20 C.J.S. 896,
Counties, Section 101(l): p. 1014, Sect. 180.

          In gano v. Palo Pinto Countv, 71 Tex. 99, 8 S.W. 634,
636 (1888). the Supreme Court of Texas recognized that it is
the duty of the CoanniaaionersCourt ". . . to select themselves
such agents as may be necessary to assist them in the discharge
of their functions. . . .'I

          Again, in md         61Abbott v. m,       162 Tax. 617,
350 S.W.Zd 333 (1961), the Supreme Court was faced with the
question of whether the Commiaaioner8 Court had the implied
authority to contract  for certain sorviwa.   Noting tha con-
stitutional and statutory duties and functions of the Coaaaia-
aionera Court, the Court made the following holding:
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        Honorable Joe   Hesweber.   page   3        (M-678)




                    "Admittedly the Commiaaionera Court is not
              expressly clothed with constitutional or statutory
              authority to contract for the services detailed ?.I?
              this agreement, but we think that authority is im-
              plied from the powers that have been expressly
              granted to and the duties imposed upon this body
              by law. ” (at p. 334).

                  In view of 'the foregoing, we must hold that the Harria
        County Commiaaionera' Court has the implied power to hire an
        "executive assistant" employee to assist the commisaionera in
        the discharge of their functions and duties. Howaver, this
        position is not an office and the holder thereof may not in any
        measure usurp the functions and duties of the members of the
        Commiasionera' Court as public officers. It necessarily follows
        that the commissioners court also has the authority to pay the
        employee a salary and provide him with the equipment reasonably
        necessary to perform the functions for which'the employee or
        assistant was hired. This would include an automobile, pro-
        vided it,waa deeme necessary to accomplish the task of the
        position.

                  Answering your next question, we note that budgetr
        for counties over 225,000 population are controlled'by Article
        1666a, Vernon's Civil Statutes, which reads, in part, as follows:
                    II
                     . . . Upon final approval of the budget
              by the Commissioners Court, a copy of such budget
              as approved shall be filed with the County Auditor,
              the Clerk of the Court, and the State Auditor, and
              no expenditures of the funds of the county shall
              thereafter be made except in strict compliance with
              said budget. . . ."

                  This article further allows for the transfer of sur-
        plus budgeted funds, during a year, to another fund, as long
        as the total budget is not inaeaaed.

                   Article 1666a further provides in part that:
                   II
                    . . . The amount set aside in any budget
              for any purchase order or requisition, contract,
              special purpose, or salary and labor account shall
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        Honorable Joe Reoweber. p89e 4        (M-678)



             not be available for alloc8tion for ahv other
             purnoae unless an unexmnded balance remains ia
             the account after full discharqe of the obliaat&:
             or unless the reauiaition. contract, or alloaatiq
             has Men cancelled in writinq bv the Coaania8ionu8
             c

                  In answer to your budget question, we have concluded
        that the salary for the new aaaiatant can be provided for if
        the proviaiona for re-allocation of budgeted funda, emphe8ised
        above, are strictly complied with, and the total budget is not
        increased. Your 8econd question is thus anmwered  in tha affir-
        mative.

                    Your second question raise8 the gueation of whothar
        specific notice to the public is required in the abwe m8ttum.
        Routine matter8 of bu8ine88,    8uch a8 the hiring of an'employee,
        may ba considered oven though not mentioned in the notice ,of
        meeting required by Article 6252-17, Vernon'8 Civil'Statute8,
        as amended by Senate Bill 26, Chapter 227, 618t.Leqi8lature;
        The statute expres8ly excepts frcm its application thole de-
        liberations   wherein consideration is given to the appointment
        or employment of an employee. If such could be accompli8hed in
        a "closed meeting" it would not appear that the name would nec-
        essarily have to be included in the notice to the public, which
        may ba excluded from that type of proceeding.

                  Cur answer to your first question include8   tha   answer
        to your third question.


                                SUMMARX

                   The Commissioners Court is authorized to
             hire an "executive aaaiatant" to the four corn-
             miaaionera, with proper limitationa of power,
             and to provide such employee with variou8 item8
             of eguipnent and an automobile nema8ary for the
             performance  of hi8 duties. The expen8e of the
             position, including salary, may be met by re-
             allocation of budgeted funds if the methods fa

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Honorable Joe Reawbu,   pSqe 5          (M-678)


     re-allocation set aut in Article   1666a, Vernon'8
     Civil Statutes,  are strictly  adhered to. It 18
     not necerrary to ?OSt notic of the hiring Of 8r.
     employee prior to camni88ionera caurt meeting.




Prepared by Melvin E. Corley
Aaaiatant Attorney Qeneral

APPROVED:
OPINION CCMMIlYBB

Kerns Taylor, Chairman
W. E. Allen, Co-Ch8irmen

 Gordon Cans
'Bob Plowers
 John Banks
 Roland Allen

MEADE F. GRIFFIN
Staff Legal ASSiStant

ALFRED WALKER
Executive ASSiStant

NOLAWHITE
First ASSiStSnt




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