         THEA~ORNEY                   GENERAL




                       May 5, 1959 ‘~
                                   .,1_
                                   .”
Honorable Jules Damiani, Jr.
District Attorney
Galveston County Courthouse
Galveston, Texas
                               Opinion No. ~~-614
                               Rye:   Proposed resolution of
                                      the Commissioners'
                                      Court of Galveston Coun-
                                      ty regarding the working
                                      conditions of the Road
                                      and Bridge Employees and
Dear Mr. Damianl:                     other employee benefits.
       You have requested our opinion regarding the validity
of the proposed resolution of the Coyissioners' Court .of
Galveston County. It recites that:          the Commissioners'
Court of Galveston County has heretofore'discussed with the
Road and Bridge Employees of the County and their designated
representatives, ways and means for improving work conditions
and other matters, for the Road and Bridge Employees of Gal-
;eston County, . . .' It also provides for setting forth
 . . . a policy for the guidance of the Commissioners' Court
and said Road and Bridge Employees."
       The proposed resolution consists of twenty-one
Articles which are entitled as follows: Dues Deduction for
Union mployees, Seniority, Hours of Work and Working Sched-
ule, Overtime and Holidays, Pay Days, Assignment of Work,
Sick Leave, Safety, Stewards and Officers, Funeral Allowance,
Jury Service, Bulletin Boards, Benefit Plans, Construction
Work, Discrimination, Protective Clothing, Longevity Pay,
Vacations, Grievance Procedure and Arbitration, Discharge,
Appliaatlon of Provisions Herein.
       The County Commissioners' Court is a body exercising
delegated powers for t;hepurpose of carrying out State funo-
tions. Furthermore, . . . It is a settled rule of law in
this State that, where a Commissioners' Court exceeds Its
power, attempts to allow and settle aacounts not legally
chargeable against the county, its act'sare void and may be
revoked at any time, or may be attacked collaterally in a
Honorable Jules Damianl, Jr., page 2 (~~-614)


court of general jurisdiction." LikewiseJ “Commissioners1
courts, having limited jurisdiction, may act only within
the sphere of the powers and duties--express or implied--
conferred upon the; by the Con,stitutlonand statutes of
this State.          Howard v. Henderson Count
2d 479, (CXv.App.'1938 error refT ~T%FTE&         .Kt,Z*
and wages and the reguiatlon of working con,dltlonshas
traditionally In Texas County government been accomplished
by statute OP by delegation oftlegislative powers to the
Commissioners' Court. However, we find no constitutional
or statutory authorization for a collective bargaining pro-
cedure or for the recognition of ~a union of comity employ-
ees.
       Section 18, Article V of the Cons'citutio,n
                                                 of Texas
provides that:
           I!
            . . . The County Commissioners so
       chosen, with the County .Judge,as presid-
       ing officer, shall compose the County Com-
       missioners Court, which shall exercise such
       powers and jurisdiction over all county
       business, as is conferred by this Constitu-
       tution and the laws of the State, or as may
       be hereafter prescribed."
       Article 2351, Vernon's Annotated Civil Statutes,
provides that the Commissioners' Court shall:
           II     6. Exercise general aontrol over
       all roads; highways ,,,ferriesand bridges in
       their county., . . 0
      Attorney General's Opinion O-4266 (1941) held:
          (1
           . . . the wages or compensation of men
      working by the month for the various County
      Commissioners should be set or made under
      the authority of a resolution or order duly
      passed at a meeting of the'Commissioners'
      Court and entered upon the minutes of such
      meeting."
       Attorney General's Opinion V-1151 (1951) held that:
           "The Commissioners' Court in a county
       operating under the provisions of the op-
       tional County Road Law of 1947, (Art. 6716-1,
Honorable Jules Damiani, Jr., Page 3 (~~-614)


      V,C.S.) may raise the salaries or wages
      of road department employees without the
      recommendation and over the protest of
      the County Road Engineer."
        In -.-~ -- v. Gooch, 184 S.W.2dy481, 484 (Civ.App.
           Foreman
lo&$), Writ ref. W.M., the Commissioners' Court duly
adopted an order providing that interest should be paid
on warrants issued to the employees of the road and bridge
department. In holding that a writ of;mandamus should pro-
perly Issue to the county auditor of Jefferson County re-    ,
quiring  him to countersign such warrants, the court said:
                 We are of the opinion that
      such interest as may accumulate on said
      warrants before they are called for pay-
      ment is a part of the compensation for
      services performed, as much so as a per
      diem wages or salary agreed upon,
           I,

                . . I
          "We feel that it will serve no good
      purpose to enter into a lengthy discussion
      of the constitutional and statutory pro-
      visions and the cases cited dealing with
      the power of the Commissioners' Court. We
      content ourselves by saying that i.t is our
      opinion that the Commissioners1 Court had
      the authority, under Article 2351 R.C.S.
      and Article 5, Section  18 of the state Con-
      stitution, to make the contract above re-
      ferred to with the employees of the road
      and bridge department, and having done so
      in advance of the rendition of the servl-
      ces by such employees, t&y were authorized
      to order the issuance of the interest bear-
      ing warrants in questl.on,limited only by
      the amount of the current fund at their dis-
      posal, which included money In the treasury,
      taxes in process of oolleationjdurlng such
      t.axyear, and all other revenue'swhich may
      be anticipated with reasonable certainty
      during such tax year."
       Attorney General's Opinion No. O-4140 (1941) con-
sidered the implied powers of a navigation district and
compared the same to the powers of a Commissioners' Court.
Honorable Jules Damlanl, Jr., Page 4 (Ww-614)


We quote from such opinion as follows:
          "It Is a well established principle of
      ,lawthat the county commissIonerat courts
      may exercise only such power as expressly
      or by necessary Implication (sic) given to
      said courts by the Constitution and Statutes.
      This prlnolplels SO well established and
      there arc'80 many authorities supporting the
      same, we deem it unnecessary to cite any of
      such authorities. Therefore, we think that
      a navigation district Is subject to the rule
      that it must be authorized by statute, either
      expressly or by lmpllcation, to exercise any
      authority or power which it does exercise.


           "As stated above, the Harris County Navl-
       gation District is a political subdivision of
       the State and certainly Its funds are public
       funds. Therefore, the several provisions of
       the State Constitution limiting the use of
       public funds by its subdivisions do, we think,
       apply to the Harris County Navigation District.
          "The pension system of the City of Dallas,
      which had been adopted some years before the
      Legislature had authorized city pensions, was
      upheld In the case of Byrd vs. City of Dallas,
      6 S.W. (2d) 738, and in considering several of
      the constitutional provisions mentioned above,
      it was held that they had no rclatlonto a con-
      tract between a municipal corporation and its
      employees, but were Intended to Prevent the
      application of public funds to private purposes.
      The pension was held not to be a gratuity, but
      a part of the aompensation of the employee for
      services rendered. Subsequently, in the case
      of City of Dallas vs. Trammel, 101 S;W. (2d
      1009, the rule as to the pensions were (sic1
      reiterated, but It was pointed out that the    ,
      pensioner has no vested right in future in-
      stallments and that the amounts payable may be
      increased or diminished.
          1,
           . . .
           "It Is quite common for the State and the
Honorable Jules Damiani, Jr., page 5, (WW-614)


       various subdivisions of the State government
       to agree to furnish, as part of the compen-
       sation of the employee, living quarters, gro-
       ceries, automobiles, etc. . . .
           11
            . . a
           "It is our opinion that the medical servi-
       ces and hospitalsfasilities furnished employ-
       ees of the Navigation District are sustainable
       as a part of their earned compensation where
       the Board has made general provisions therefor.
       In other words, the Navigation District has
       authority to agree, as part of the agreed com-
       pensation to be paid employees, to furnish
       stipulated services for hospitalization, drugs
       and medical attention. However, these cannot
       be unlimited in amount or kind, and must, there-
       fore, be for some reasonable fixed maximum amount."
       In Gulf Bitulithic_I-,Co. v. Nueces County, 11 S.W.2d
305, 313 (Com.APP. 19287    the Commis~r~ourt         employed
an agent to reconstruct :he county roads after a disasterous
hurricane. The court held:
           "The commissioners' court of'Nucces county,
       under the power vested in it by law, had the
       right to build and construct its publip roads
       without letting a contract therefor, If it saw
       fit to do so. The power to build such roads
       necessarily implied the addi~tlonalpower to em-
       ploy such agents as might be reasonably neces-
       sary to accomplish such purpose. In fact, there
       Is express statutory authority for the employment
       of such agents. Article 1580, R.S. 1925.    If it
       had the power to employ plaintiff in error to
       supervise the building of its roads, which cannot
       be seriously questioned, it necessarily follows
       that it could employ it for such length of time
       as was reasonably necessary to complete such
       work. . . -"
       In Dodson v. Marshall, 118 S.W. 2d 621, 624 (Civ.App.
1938) writ dismissed;~&zo       Court of Civil Appeals was
concerned with the legality of the renting by the Commls-
sioners f Court of Grayson County of a small alcove in the
courthouse to the operator of a cold drink stand. Justice
Alexander said:
                                                               -




    Honorable Jules Damlanl, Jr., page 6 (WW-614)


               II
                . . . It should be noted in this
          connection that the contract here under
           consideration Is terminable at the will
           of the commissioners, and that~the court
           has not ,partedwith its control over the
           premieeer. . . .


              "Of Course, we recognize that If the
          commisslonerst court shouldlease for the
          purposes Indicated space that was needed
          for county offlces'or other purposes or
          should grant a lease for such a time as
          to unreasonably interfere with the right
          of the court to regulate the use of the
          courthouse, OP should otherwise materially
          Interfere with the use of the courthouse
          as a whole Car the purpose for which it is
          Intended, said court might thereby exceed
          Its jurisdiction or there might be a clear
          abuse of discretion, in which event the
          district court in the exercise of its su-
          pervisory powers would have a right to
.         intervene. But so long as there is a
          reasonable exercise of the discretion vested
          In the commissioners' court in a matter wlth-
          In its jurisdiction, that court alone has the
          right to determine the policy to be pursued
          and the district court has no authority to
          Intervene. Schlller v. Duncan, Tex.Clv.App.,
          21 S.W.2d 571, pars. 1,2; Kin v. PallsCoun-
          ty, Tex.Clv.App., 42 S.W.2d 48 1 pars. 5,6;
          Slimp v. Wise County, Tex.Civ.App., 96 S.W.2d
          ~,Y~;,,;Fs.7-g; Tarrant County v. Shannon,
                    104 S.W,2d 4, par. 5.   The frequently
          recur&i   biennial elections at which the com-
          missioners are required to account to the elec-
          torate for their conduct in matters of this kind
          furnishes sufficient protection to the public
          against ordinary indiscretion not amounting to
          a clear abuse thereof by the commissioners' court.
          . , ,(1
           Attorneg,General's Opinion No. V-110 (1947) held
    that a Commissioners' Court did not have authority to
    enter into a collective bargaining contract with a labor
    union "when such agreement undertakes to limit the Com-
-   .




    Honorable Jules Damiani, Jr., page 7 (~~-614)


    missioners' Court's authority as to the conditions of em-
    ployment, working hours, vacttions, and other matters
    relating to such employment.
           An Increase in compensation cannot be granted to
    apply retroaqtlvely, for to do so would be a olear vlola-
    tlon of Section 53 of Article III of the Constitution of
    Texas   See Fmplre Gas and Puel Co. v. State, 121 Tex.
    138, 47 S,W.??d2b5 Plercs%?i v. Galvesto6i7?ounty,$31
    S.W.2d 27 (Civ.Appf m;'~   ~'
                                But an employee's service to
    the county prior to the effective date of the resolution
    does not have to be disregarded. See Byrd,v. City of
    Dallas, 118 Tex. 281, 6 S.W. 2d 738.
           Thus, in the employment of its road and bridge em-
    ployees, the Commissioners' Court has the authority and
    duty to make reasonable provision for their compensation,
    working times~and working conditions. This is a continuing
    duty and the Commissionerst Court can change such provisions
    from time to time. Part of such compensation may be in the
    form of reasonable "fringe benefits" so long as provision
    therefor is made in advance of the services being rendered.
    It could provide for wages, weekly pay days, longevity pay,
    overtime pay, hours of work, working schedule, work assign-
    ments, vacations, holidays,sick leave, time off for per-
    forming jury service, time off for attending funerals of
    close relatives, safe and sanitary working conditions, ln-
    vestigatlon of accidents, protective clothing, and employee-
    elected stewards to attend to grievances.
           Likewise, the Commissioners' Court can employ agents
    for a period that is long enough to get a specific task ac-
    complished, but no longer, It has a general power of con-
    trol over roads and bridges, and this power cannot be sur-
    rendered, delegated or limited by contract or by a resolu-
    tion such as the one under consideration.   Any attempt to
    create vested rights In the road and bridge employees in
    derogation of such power would be ultra vires and void.
    It is our opinion that those parts of the proposed resolu-
    tion in conflict with such general power of control would
    be void. In this connection, we invite your further consid-
    eration of the 'proposedresolution with particular attention
    to the provisions pertaining to seniority, grievance, dls-
    charge and arbitration.
           It is our opinion that In the absence   of specific
    statutory authority the Commissioners1 Court   could not
    provide for the deduction of union dues from   the wa es of
    union employees. Attorney General's Opinion    No. V-887
                                                             I   -




Honorable Jules Damlani, Jr., page 8 (m-614)


(1948) held In connection with Section 1 of H.B. 420, Acts
of the 50th Legislature, Regular Session, 1947:
           "Since the Act ,     does not contain any
       provision authorizlng'the ,oountyauditor to
       oollec& and pay premiums therefor from the,
       county empioyces,tsalaries, you ape respectful-
    :, ly advlscd that In the absenac of suoh authority
       it Is the opinion of this Department that the
       county auditor cannot collect and pay premiums
       on such a group insurance plan under the provls-
       ions of said Act."
       It is our opinion that the Commlssionerst Court c'ould
allow a labor union to use county bulletin boards with county
officials and the general public but such use could not be to
the exclusion of others. Attorney General's Opinion V-301
(1947) held:
           "A Commissioners Court may allot additional
       offices to the county clerk, if needed, for
       furnishing space to the general public to in-
       spect and copy records, but may not grant space
       In the county courthouse to an abstract company
       for an office in which to conduct its business
       to the exclusion of all others."
       Section 4 of Article 5154(c), V.A.C.S., provides that:
           1,     no person shall be denied public em-
       ployment by reason of membership or non-member-
       ship In a labor organization."
       Section 2 of Article 5207(a), V.A.C.S., provides that:
           llNoperson shall be denied employment on
       account of membership or non-membership in a
       labor union."
       Therefore, It Is our opinion that it would be proper
for the Commissioners' Court to resolve that persons shall
not be discriminated against, discharged or harassed because
of such membership or non-membership.
       Article 5159(a), V.A.C.S., provjdes:
           "Section 1. Not less than the general pre-
       vailing rate of per diem wages for work of a
-   *




    Honorable Jules Damlani, Jr., page 9 (WW-614)


          similar crharacterlnthe locality In which
          the work is performed, and not less than
          tha general prevailing rate of per diem
          wages for legal holiday and overtime work,
          shall~be paid to all laborers,'workmen and
          mechanics employed by or on behalf of the
          State of Texas,,or by or on behalf of any
          co,unty,c$,tyand county, city, town, dis-
          trict or other politlaal subdivision,of the
          Stat@, engaged In the construction of public
          works, exclusive of maintenance, . . .
              "Sec.'2. The public body awarding any
          contract for public work . . . shall ascertain
          the general prevailing rate of per diem wages
          in the locality .,. . for each craft or type
          of workman .     also the prevailing rate for
          legal holiday'and overtime work, . . ."
           In Southern Prison Co. v. Reynolds, 110 S.W.2d 606
    (Clv.App.)1937,t                           stated:
              "Since the power and duty of determining
          the prevailing per diem wage rate for the
          work on this contract was vested in the Com-
          missioners1 Court, it was not authorized to
          ignore such power and duty in its discretion."
           It Is our opinion, therefore, that the Commissioners'
    Court would be obligated to observe this duty at all times.
           Attorney General's Opinion No. O-7011 (1946) was con-
    cerned with the question of whether or not a county-district
    clerk could operate in his county office an abstract firm
    and use county help, equipment and utilities in the operation
    of said firm. The question was answered in the negative in
    the following language:
              "We know of no authority for the Com-
          mlssioners~ Court to expend county funds
          for office equipment and supplies to be
          used for purposes other than 'county pur-
          poses.' Moreover, we know of no authority
          for a county officer to use fees of office
          to pay help used by said officer for a
          purpose other than that of carrying out
          the duties and functions of the office.
                                P                             ,

     .*
                                                                      t
                                             6
                                      10 (~~-614)
~, Honorable Jules‘Damiani,~J,r..,,.page


         Ther,efore,lt~isour opinion that tending to union
  business and furnishingthe union with six copies of
  quarterly overtime reports would'not be among the duties
  andfunctions of the road and bridge employees 'and the
  commissioners, ,respectipely.    ~
         As stated above, we find no authorization,for a
  collective bargaining proaedure or for the recognition of
  a union a8 the bargaining agent for County employees.
         We are-attaching oonies of'the various earlier opln-
  Ions referred to her&.    -
                                       SUMMARY
                                            i
                       A Commissioners' Court has the power
                       to make reasonable provision for the
                       compensation (Including "fringe bene-
                       fits"), working times and working
                       conditions of-the road and bridge em-
                       ployees, provided this ls$done before.
                       the services are rendered. A Cot&nis-
                       aboners' Court cannot ~llmlt its power
           : .,        to'provl,aefor, or change, these mat-
                       ters,at.~anytime, It cannot pay,a
                       portion of the wages of road and bridge .I'
                       employees to a labor unionwithout stat-
                       utory authorization> an8 It cannot use     I
                       county help to perform services for a
                       labor union.! It can allow a labor urilon
                  :.   and others to make reasoqable,use of,
                       county bulle)tn boards. U,must provides
          .r;          for,the paymeRt of the prevailing wage
                       by,a,ountycontractors. It can provide
                       that road and brAage employees shall,not
                       be discrl lnatedagainst because of union
                       ornon-u r-i&o
                                  n member&!ip.'!             ,.
                                                         .$
                          ,c.
                                           Yours ve&truly,
                                                     .i
                                          ,WILL WT&S@N ,<
                                           Attopef G;neral of Texas
                                            /It


                                           - ‘Jay Howell.
                                             Assistant
  JH.:rm
Honorable Jules Damlani, Jr., page


APPROVED:
OPINION COMMITTEE
Qeo. P. Blackburn, Chairman
Milton Richardson
Jack Goodman
W. R. Hemphill
C. Dean Davis
REVIEWED FOR THE ATTORNEY GENERAL
BY: W. V. Geppert
