Honorable  Mike Driscoll                Opinion    No. JM-1074
Harris County Attorney
1001 Preston, Suite 634                 Re:   Whether the     establishment
Houston, Texas   77002                  of a   separate payroll       depart-
                                        ment by    a commissioners      court
                                        impermissibly       infringes       on
                                        duties assigned      to the    county
                                        treasurer     (RQ-1541)

Dear   Mr.    Driscoll:

      You inform us that     following the issuance of       Attorney
General Opinion JM-911      (1988), the    commissioners    court    of
Harris County removed payroll processing        functions   from    the
office of   the county    auditor and     placed them     in a   newly
created county payroll department.        The county treasurer      has
expressed  concern   about the     actions of    the   commissioners
court and has asked for a clarification        of Attorney     General
Opinion JM-911 with    particular    reference    to the    following
issues:

                 (1)   Does  the establishment     of a    separate
             payroll    department     by   the   County    Commis-
             sioners      Court     impermissibly      usurp     the
             statutory    authority   of the County Treasurer?

                 (2) Where Harris County officers      author-
             ize payment of    employee salaries should     the
             preparation   and  disbursal  of  the checks    be
             performed   by the County Treasurer?

      Attorney      General   Opinion     JM-911    reached   the   following
conclusions:

                 (1) In Harris     County    and    counties    with
             populations     greater    than    190,000,     county
             officers are     authorized     to   issue    warrants
             against the salary fund of the county to            pay
             salaries    and   draw   checks     on   the    county
             treasurer   to pay salaries.       Local Gov't     Code
             5s 113.047, 154.043.




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                (2) In Harris    County    and   counties    with
            populations    greater    than   500,000,      county
            officers   and department   heads are required to
            prepare and file a sworn payroll for          certain
            employees    in their     respective     offices    or
            departments.    Local Gov't Code 5 151.903.

                (3) The  ministerial      aspects   of         these
            duties   may  be    delegated    to   the         county
            treasurer.

               (4) The   county auditor        is not     authorized
            to perform   these duties.

Your questions   require consideration    of two things.     First,
we must examine    the powers    of the   commissioners  court    to
ascertain  its authority   to   create a payroll department      for
all county offices and departments.       Second, we must    deter-
mine whether    the duties    granted the   department   interfere
with or usurp the duties of the county treasurer.

      As the    remainder     of   this opinion      will   explain,     we
believe the commissioners        court has no independent       authority
to establish    a payroll department        for   all county     offices.
Because you have supplied us with no details concerning                 the
operation   of the payroll department,        we are unable to answer
whether   its operations     usurp the powers of the county          trea-
surer.    However,     information     provided   by   the   treasurer's
office suggests      that the     payroll department       will    perform
duties that are expressly        delegated   both to county      officers
generally     and    to   the     county    treasurer      specifically.
Finally,   if   county    officers     in Harris     County    choose    to
delegate their      authority     to prepare     salary    warrants     and
paychecks   to    another    office,    they    are   not   required     to
delegate   such duties to the office of the county             treasurer.
The county treasurer,       however,     is the official      responsible
for delivering     paychecks    to county officers and employees.

      There are    few rules      more    firmly established        in   the
jurisprudence    of this state than those governing            the   powers
of the county commissioners          court.    The familiar and        fund-
amental maxim that      guides the       courts is that the         commis-
sioners court     may   exercise      only    those    powers    that    are
expressly   conferred    by the      constitution     and   laws of     this
state or are necessarily         implied from such express          powers.
See Tex.    Const.    art.    V,   §  18(b);     see   also    Canales    v.
Lauohlin,   214  S.W.2d   451   (Tex.  1948);    Anderson   v.  Wood,    152
S.W.2d 1084 (Tex. 1941).         Constitutional      or statutory    provi-
sions conferring      authority      upon    the   commissioners       court
should be broadly and       liberally     construed    to determine      the




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scope of the express or necessarily     implied power.   Cosbv v.
Countv Commissioners   of Randall Countv     712 S.W.2d 246 (Tex.
APP. - Amarillo   1986, writ ref'd n.r.e:).     Where a right   is
conferred  or   a duty  imposed,   the commissioners    court   is
given broad discretion   to accomplish   the purposes   intended.
Attorney  General Opinion JM-350     (1985) (citing Anderson    v.
Wood. suora).

      As you observe in your brief, the implied powers of the
commissioners     court must necessarily       flow from some        express
grant of authority.        Where the actions of the          commissioners
court can be aligned with specific statutory              authority,      the
courts    allow    the    commissioners      substantial      latitude     in
achieving   the    statutory     objective.     See,     e.a      Cosbv
Countv Commissioners       of Randall County        suora (cAmmissione:s
court had implied authority          under former V.T.C.S.         articles
1603 and    2351(7) to      demolish and      replace existing        former
courthouse);     Schone v.     State, 647 S.W.2d        675 (Tex. App.       -
Houston   [14th    Dist.]     1982, pet.     ref'd)     (authority     under
former V.T.C.S.      article 2372~     to adopt order requiring           all
sexually oriented businesses          to obtain      permit from      county
sheriff).    However, where the        power sought to be         exercised
has no legal basis, the         commissioners     court has no       implied
authority   to    act.    See,   e.a., Canales       v. Lauahlin,
(commissioners     court had no power to appoint a "county %i
unit administrative       officer" since no statute authorized            the
creation of such       an office);     Starr Countv       v. Guerra,      297
S.W.Zd 379      (Tex. Civ.     APP. -    San  Antonio     1956,   no   writ)
(employment    of    county    commissioner      as   road    commissioner
contrary    to     commissioner's      oath    of    office    and    former
V.T.C.S.   articles    6737 and 6762).

      YOU   acknowledge     the    absence     of   express     statutory
provisions   granting    the commissioners        court the     power    to
create a county payroll          department,    yet   you contend      such
authority   may be implied from        section 115.021 of the        Local
Government   Code.    Section 115.021       directs that the       commis-
sioners court shall "audit         and settle all accounts         against
the county and shall direct the payment of those               accounts."
Attorney    General    Opinion     JM-192     (1984)    concluded     that
commissioners    court approval of salaries was required by the
statutory    predecessor      of   section     115.021    before    salary
warrants   could be issued.       See also Attorney General Opinion
JM-986   (1988).   YOU    conclude that      the commissioners       court
has implied authority      to    establish   a payroll department        to
the extent one is necessary         for the approval of claims.

      The power  of  the commissioners    court    to establish
agencies to assist the court is also subject to familiar and
well-established  rules. The commissioners    court has implied




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authority   to   employ experts     to provide     services that      are
necessary    to   the   performance     of   its   official      duties.
Pritchard   & Abbott v. McKenna,       350 S.W.2d 333 (Tex.        1961).
In carrying     out   the   general purposes     for    which    it was
created, the     commissioners    court    may employ    agents to      do
things that are not specifically        required of other officers.
Von fiosenbera    v. Lovett,     173 S.W.- 508 (Tex.       Civ. App.     -
Austin 1914. writ ref'd).        The commissioners     court may     not,
however,  confer on an agent       or other officer authority         the
court itself may not exercise.         Jones v. Veltmann,      171   S.W.
287 (Tex. Civ. App. - San Antonio         1914, writ ref'd).

      For several reasons, we do         not agree that the        commis-
sioners court     has implied      authority    to create      a payroll
department   pursuant to section 115.021.          We have    previously
determined   that    the authority      of the    commissioners      court
under section 115.021 does not include the implied authority
to prepare    the county      payroll.    Attorney     General    Opinion
JM-986   (1988).     Furthermore,    it   seems illogical       that    the
department   created by the commissioners         would be     authorized
to process only payrolls,       rather than all claims or accounts
against the county       requiring   court    approval under       section
115.021.    Finally,    the    creation of     a payroll       department
solely on    the   order    of the     commissioners     court     clearly
infringes   on the    powers of county       officers,    including     the
county treasurer,     on whom specific authority        to prepare      the
payroll is conferred      by statute.

      Another  limitation          of  the    commissioners          court's
authority   is that it may          not usurp   the powers      of     other
county officers:

            The commissioners'     court cannot     deprive     an
            officer of the    authority,    rights and     duties
            which inhere in his     office, nor require        him
            to   delegate   the   same   to   another      person
            selected    by  it:   nor   can   it   displace     an
            officer    by  authorizing    another     person    to
            perform duties devolved upon him by statute.

Aldrich v. Dallas      Countv, 167     S.W.2d 560,     565 (Tex.     Civ.
APP. -   Dallas   1942,   writ   dism'd)    (quoting   34  Tex.     Jur.,
Public Officers    5 69).    See   also Navarro Countv v.        Tullos,
237 S.W. 982     (Tex. Civ.    App. - Dallas      1922, Writ     ref'd).
Other cases    furnish ample      proof of    the vitality      of   this
principle.    Collectively,    they demonstrate     that the     commis-
sioners court may not arrogate or intrude upon the statutory
duties of    other officers      under the    guise of    its    general
powers, its authority      to adopt    and approve budgets,      or    its
power to set salaries.       See Bastroo Countv v. Hearn, 8 S.W.
302 (Tex.    1888); Vondv     v.   Commissioners    Court    of    Uvalde




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Countv, 714 S.W.2d 417 (Tex.       APP. - San Antonio 1986,        writ
ref'd n.r.e.): Caldwell Countv       v. Citizens State Bank,        676
S.W.2d 159 (Tex.     APP. -   Austin   1984,   writ  ref'd   n.r.e.)   ;
Commissioners   Court    of  Harris    Countv        Fullerton,     596
S.W.2d 572 (Tex. Civ. App. - Houston        (lstVDist.]   1980,    writ
ref'd n.r.e.): Presidio Countv v.        Walker,   69 S.W. 97     (Tex.
Civ. App.    1902,   writ ref'd).      The   commissioners     court's
implied authority    to hire agents     and experts is subject       to
this limitation    as well.   See,   e.a., Terre11 v. Greene,         31
S.W. 631 (Tex. 1895); Seaaler       v. Adams, 238 S.W. 707        (Tex.
Civ. App.    - Galveston    1922),   aff'd,    250   S.W. 413     (Tex.
1923).

      Attorney   General     Opinion     JM-911     concluded      that    the
legislature,    via three      provisions    of    the Local     Government
Code, delegated     primary     responsibility      for .the preparation
and processing     of   payroll and      the payment      of salaries       to
county officers       and   department      heads    in Harris       County.
Section 151.903       requires     county    officers     and    department
heads in a county       with a population       of   500,000 or mo,re to
file a sworn payroll        at the close      of each month        detailing
certain information       for each person employed by the            officer
and paid    with county      funds     or funds     of a    flood    control
district   located wholly within the county.             Section      113.047
authorizes   a county officer in a county with a population                 of
190,000 or     more    to draw     checks    in payment      of    salaries.
Section 154.043(a)      authorizes    district,     county, and precinct
officers   in such a county        to issue salary warrants         in   pay-
ment of employees'      salaries.       These provisions      were     deter-
mined to    vest    county officers       with     the bulk     of   payroll
responsibilities.       The    most    notable     exceptions      were    the
county treasurer#s      duty under      section 155.021 of the          Local
Government   Code     to make    deductions      from the     salaries      of
county officers and employees          and the commissioners         court's
duty to approve salary payments under section 115.021.

      As   previously     mentioned,    Attorney     General     Opinion
JM-986 concluded     that the commissioners      court has no implied
authority     under   section    115.021    to   prepare     the   county
payroll.    This opinion also determined        that section      155.021
gave the county      treasurer   the   power and the      duty to    make
deductions    from   the   compensation    of   county    officers     and
employees.     The latter provision      was, in our view,        indica-
tive of the     general understanding      of   the legislature       that
payroll duties were among the core functions           of the     consti-
tutional office of county treasurer.           Though the legislature
arguably has the discretion       to confer some of these respons-
ibilities    on all   county officers      generally    (as   it has    in
Local    Government    Code     sections    113.047,     151.903,      and




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154.043), we stated the commissioners  court             has   no power      to
assign such duties to another officer.

      These opinions and code         provisions    make it     abundantly
clear    that   the    commissioners       court   has   no    independent
general authority       to process      the   payroll   for    all   county
offices.      Since    it   cannot     delegate    power    it   does    not
possess, the      commissioners     court    is without     authority     to
create a county      payroll department       to   perform such      duties
for all county offices.          Canales v. Lauahlin,       suora;    Jones
     Veltmann             * Presidio       Countv   v.   Walker,     suora;
Attorney   Gen&axnion           JM-986    (1988).   You do not disclose
whether all county officers          have delegated     their    authority
under sections     113.047, 151.903, and 154.043 to the             commis-
sioners court or to the         payroll department      it has     created.
In the absence      of an     effective    delegation    of such     duties
from all county officers,        we believe the commissioners          court
may not    assign     payroll     responsibilities      for    all   county
offices to an agency of its own creation.

      Furthermore,     information      supplied    in    connection      with
this request indicates         that the     sole duty      of the    payroll
department    created     by the    commissioners      court    will be      to
process payrolls.        The county     treasurer     will be allowed        to
"verify" payroll       deductions,      print     paychecks     and    direct
deposit statements,        and    disburse paychecks        to    employees.
The implementation       of the    system under these         circumstances
would require      county     officers to      delegate     their    payroll
duties to an office        of the commissioners        courtIs     choosing.
Also, since     we perceive       a significant       difference     between
l'makingl' a payroll deduction         and "verifying"      one that      pre-
sumably has already been made,            such a system would         require
the county treasurer       to relinquish     her duties under         section
155.021.      See    Attorney      General     Opinion     JM-986       (1988)
(describing    treasurer's       duty   to    ltmakel* deductions        under
section 155.021).        The commissioners      court's proposal         would
thus deprive      the county      treasurer    of   authority      expressly
granted to her in her general capacity as county officer and
would    prevent     her    from   discharging      duties     specifically
imposed upon      the    office    of county      treasurer     by    section
155.021.     This    would    plainly     exceed the      command     of   the
commissioners      court.        Aldrich v. Dallas        Countv       m.
Accordingly,      we   conclude      that   the    establishmeAt       of
separate     payroll     department     by    the    commissioners       courg
impermissibly     usurps the statutory         authority     of the    county
treasurer,    as well as that of other county officers.

      Moving to your second question,             we refer     once   more   to
Attorney   General Opinion JM-911:




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            The act of 'drawing' a check does not . . .
            require the officer       to actually perform       the
            clerical tasks of printing and writing           in the
            figures on the       face of   the check.      Rather,
            the officer     may 'cause     it to   be    written,'
            i.e., may     delegate    this task.      We   believe
            that both logic       and constitutional     law   dic-
            tate that     the only    other official      to   whom
            this function      properly may    be delegated       is
            the county treasurer,      since the treasurer        is
            authorized    to 'pay and apply' county money as
            required by law       or the commissioners       court.
            Local    Gov't    Code   5 113.041(a).       See   also
            Attorney     General     Opinion     JM-585      (1986)
            (defining    'disburse'   as 'pay or expend').

Attorney     General     Opinion   JM-911       (1988),   at 18.

      These remarks were made after careful consideration               of
the nature and     history of the      office of county      treasurer.
The statements     regarding    preparation    of paychecks      reflect
the close alignment     of these functions with duties that            are
currently   or were formerly delegated       to the county treasurer
by statute.    m      Local Gov't     Code 5 113.042(a)       (treasurer
shall endorse face of properly drawn warrant,           check,    vouch-
er, or order with the order to pay the named payee if              there
are sufficient     funds in the account        against which      it    is
drawn); former V.T.C.S.       art. 2554     (predecessor    of   section
113.042(a),   requiring    treasurer   to pay a warrant by       drawing
his check as     county treasurer     upon   the county treasury        in
favor of    the legal    holder     of the   warrant).    Thus,     if   a
county officer were to choose         to delegate the duty of        pre-
paring paychecks      to another     office, we    believe logic       and
history give priority to the office of county treasurer              over
any other.

      Priority should not, however,         be mistaken    for a    right
of office.    Although    there is a strong logical          preference
that all    ministerial   payroll    duties    be delegated      to   the
county treasurer,     we are aware     of no principle     of law    that
compels county officers to        delegate such functions       only   to
the county treasurer.       To reach this conclusion       we would    be
forced to endorse a result we have already repudiated               inso-
far as the commissioners      court is concerned.       See Aldrich v.
Dallas County, m.           If we   were writing on a clean         slate
without the aid      or hindrance     of legislation,      we would    be
inclined to conclude that the         county treasurer     is the    only
officer who could assume       duties associated     with the     county
payroll.    See Attorney General       Opinion JM-986     (1988).     Our
inclinations,    however,    are   tempered by     the   enactment     of




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sections    113.047,     151.903,    and    154.043   of    the     Local
Government   Code.    So,   while there may      be misgivings      about
delegating   such    responsibilities     to an    agent    or   officer
other than the     county treasurer,     only    the legislature      has
the power to     remedy this     deficiency.     This   office has     no
authority   to formulate    or adopt public policy.       Accordingly,
we conclude    that county      officers    are permitted,      but   not
required,   to delegate     the duty of    preparing    paychecks     for
their respective     offices to the county treasurer.

      As far as check disbursal     is concerned,    we think it     is
now settled   that   the    county   treasurer    is   the   official
responsible  for delivering    paychecks   to county officers      and
employees.   &g    Attorney    General Opinions      JM-986,   JM-911
(1988): JM-585    (1986).     Since   you   do   not   dispute    this
conclusion,  there is no need to       elaborate   further on     this
point.

                                 SUMMARY

                     The commissioners     court of Harris County
            has      no   independent     general    authority       to
            establish      a payroll department.        The creation
            of a county payroll department           under the cir-
            cumstances      considered    in this opinion        would
            impermissibly       usurp    the statutory      authority
            of     the    county     treasurer     under     sections
            113.047,      151.903, 154.043, and 155.021 of the
            Local Government         Code.    County    officers     in
            Harris      County     are    authorized,       but    not
            required,       to   delegate    the    preparation      of
            employees'      paychecks   to the county treasurer.
            The county treasurer         is the official respons-
            ible      for   disbursing     paychecks     to     county
            officers and employees.




                                                  JIM      MATTOX
                                                  Attorney  General   of Texas

MARY    KELLER
First    Assistant    Attorney     General

LGU MCCREARY
Executive  Assistant       Attorney    General




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JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney       General

RICK GILPIN
Chairman,  Opinion    Committee

Prepared by Steve Aragon
Assistant Attorney General




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