JIM   MA-                    August 26, 1988
ATMRNEY     GENERAL



      Honorable Tim Curry              Opinion No. 8X-947
      Criminal District Attorney
      Tarrant County                   Re: Whether a commissioners
      200 West Belknap Street          court may require perfo,rm-
      Fort Worth, Texas 76196          ante evaluations of assist-
                                       ant district  attorneys not
                                       covered by civil service,
                                       and related questions
                                       (RQ-1198)

      Dear Mr. Curry:

           You ask whether the Tarrant County Commissioners  Court
      "may require performance evaluations"   whereby salaries   of
      assistant district  attorneys,  secretaries,  investigators,
      and other personnel in the District Attorney's office, are
      "set," none of the referenced  positions being covered by a
      civil service program.

           Commissioners Court of Caldwell Countv v. Criminal
      District Attornev.   Caldwell Countv,  690 S.W.2d 932     (Tex.
      APP. - Austin    1985, writ   ref'd n.r.e.) considered      the
      application of former article 689a-11, V.T.C.S., Acts     1931,
      42d Leg., ch. 206, 512, at 339 as amended (now repealed     and
      codified as sections 111.001-111.007 of the Local Government
      Code), and former article 332a, Acts 1973, 63d Leg., ch.
      127, 5 5, at 275     (now repealed and codified     as section
      41.106(a) of the Government Code) to the issue of whether
      the commissioners court, while carrying    out its budgetary
      procedures pursuant to article    689a-11, could change the
      amounts of salaries of personnel in the District Attorney's
      office where those employees' salaries had been set by the
      District Attorney pursuant to article 332a, SeCtiOn    5.

            Article 332a, section 5 then provided as follows:

                  Salaries    of    assistant    prosecuting
               attorneys,  investigators,  secretaries   and
               other office personnel shall be fixed by the
               prosecuting attorney, subject to the approval
               of the commissioners court. . . .



                                   p. 4777
Honorable Tim Curry - Page 2   ml-947)




    Article 689a-11 provided, in pertinent part:

           At the conclusion    of the hearing,    the
        budget as prepared by the County Judge shall
        be acted upon by the Commissioners~    court.
        The Court shall have authority to make such
        changes in the budget as in their judgment
        the law warrants    and the interest of the
        taxpayers demand [sic]. When the budget has
        been finally gpDroved   by the Commissioners'
        Court, the budget, as anvroved by the Court
        shall be filed with the Clerk of the County
        Court, and taxes levied only in accordance
        therewith, and no expenditure of the funds of
        the county shall thereafter be made except in
        strict compliance with the budget as adonted
        by the Court.   (Emphasis added.)

     The District Attorney had argued, the court said, that

        by enactment of article 332a the Legislature
        intended to withdraw     from the    counties'
        budget-making  process,   and the    attendant
        vicissitudes of political    controversy,   the
        amounts necessary to pay the salaries of the
        prosecuting   attorney's    employees,    which
        amounts should instead be 'fixed' by the
        prosecuting attorney,   to be changed by the
        Commissioners Court only to the extent the
        amounts 'fixed' by him are unreasonable      or
        unnecessary.

690 S.W.2d at 935.

     The court reasoned:

        Under the prosecuting    attorney's   interpre-
        tation, his unilateral   determination of his
        employees'  salaries   is not    realistically
        subject to the public debate, the political-
        adjustment   process,    the   public-interest
        evaluation, the taxpayer-interest    considera-
        tion, and the mandatory correlation of county
        revenue and    expenditure   estimates    which
        comprise the legislative process contemplated
        by art. 689a-11.     Of what  use are public
        hearings, public debate, and so forth if the
        amounts 'fixed' by the prosecuting     attorney
        are not open to change by the only body
        authorized to raise the revenue to pay them




                               p. 4778
Honorable Tim Curry - Page 3 (JM-947)




        and make the other legislative determinations
        referred to above?  If they are not open to
        change, there is no practical reason for them
        to be discussed or subjected to the political
        and legislative process.   They are outside
        such process and the result of dictation by a
        single officer of the executive branch -- an
        anomaly  in any governmental    budget-making
        process.

Id. at 938.

     The court then reconciled the apparent conflict between
the provisions  of article 332a, section     5 and article
689a-11, holding as follows: _

        [T]he Legislature    intended by     the    two
        statutes   in question   that the     ordinary
        budget-making  process  of art. 689a-11 be
        followed in reference to the salaries of the
        prosecuting attorney's employees, except that
        he, and not the County Judge, shall specify
        the amounts to be included in the proposed
        budget submitted to the Commissioners    Court,
        that Court having the power to change those
        salaries, as in the case of ordinary     county
        employees, before approving and filing the
        budget with the Clerk of the County Court.

&   at 939.

     To the extent to which they are inconsistent with the
holding of Commissioners Court of Caldwell Countv, we are of
the opinion that the following attorney general opinions   on
which you rely in your brief are now overruled:         H-908
f-761,    indicating   that the    commissioners court    has
authority only to approve or disapprove the salaries set by
the District Attorney for personnel in his office; H-922
(1977), holding similarly that the commissioners court may
not set, but only approve or disapprove, the salary of the
prosecuting attorney's secretary as set by the prosecuting
attorney: and H-1113 (1978), ruling that the salaries of the
prosecuting attorneyIs   personnel  are not subject to the
general authority of the commissioners court to raise the
salaries for personnel in the departments of elected   county
officials.

     your request calls into question the construction    of
two current statutes which are virtually   identical to the
statutes treated in Commissioners Court of Caldwell  County:




                             p. 4779
Honorable Tim Curry - Page 4    (JW-947)




Section   41.106(a) of the Government     Code, which   is a
codification without any substantive change of article 332a,
section 5, suvra,   and the provisions     of subchapter   B,
chapter 111 of the Local Government   Code, the counterpart
provisions to the provisions of subchapter A of chapter   111
for counties with a popul'ation of over 225,000.          The
provisions of subchapter A are derived from former article
689a-11; they now apply only to counties       of less than
225,000 population.    (See the Revisor's   Note to section
111.001 in the Revisor's    Report  in the proposed     Local
Government Code, Texas Legislative Council, February 1987.)

     It is our opinion that the holding with respect to the
purpose and effect of article 689a-11 in Commissioners Court
of Caldwell  County -applies to our construction      of the
provisions  of chapter   111, subchapter   B of the Local
Government Code, the general provisions   for the budgetary
process which are applicable to Tarrant County.

     It is    clear, therefore,    under the     holding  of
Commissioners Court of   Caldwell  Countv   that   while the
Tarrant County District Attorney may wfi;ll the salaries  of
his office personnel, the commissioners court may not only
approve or disapprove such salary figures but may also raise
or lower the salar~ies "fixed" by the District Attorney   in
arriving at its budget.

     In considering  the issue you present -- i.e. whether
the county commissioners  may Veguire" performance   evalua-
tions "whereby salaries are set" for personnel       in the
District Attorney's office, the following guidelines are to
be applied.

     Nothing in Commissioners Court of Caldwell Countv
in other law, cases, or opinions of this office,   gue&ioiE
the authority  of the District Attorney to formulate     the
salary proposals according to such criteria   as he, within
his sole discretion,   adopts. The commissioners    may not
therefore require that the District Attorney    base salary
proposals on the results of the performance evaluations.

     On the other hand, since the commissioners may approve,
disapprove, modify,  or effectively   disregard  the salary
proposals made by the District Attorney,     we are of the
opinion that the commissioners    may use the performance
evaluations in determining the salary figures which they
will actually adopt in their budget.

      We believe that the commissioners'   authority to make
the   final budgetary   determinations   regarding   salaries




                               p. 4780
Honorable Tim Curry - Page 5    (JR-947)




necessarily includes the authority to obtain data from the
District Attorney's office on which to base such determin-
ations. We would note that, according     to the information
you supplied, the performance evaluations in question are to
be administered by personnel *within the District Attorney's
office and that their administration will    involve only &
minimis intrusion by the commissioners   into the day to day
operations of the District Attorney's     office.   We would
further note that our ruling here is of course limited to
this particular   factual situation which you presented    in
your request.

     A consideration   of various provisions     of the Local
Government Code indicates that our conclusion is consistent
with the overall statutory    scheme for the operations      of
county government.     Sections   111.005 and 111.036 -- the
former applicable to counties of 225,000 population or less
and the latter to larger counties -- provide that the county
budget officer, the county judge in section 111.005, and the
county auditor    in section    111.036, may require     county
officers to furnish information     necessary for the budget
officer's budget preparation.     Moreover, other sections   of
the Local Government   Code show that the commissioners     are
not precluded,   in other contexts,. from regulating       work
conditions  of or obtaining      data on the activities      of
personnel in county offices. Section 157.021, derived      from
former V.T.C.S.   articles 2M2h,     3912e-4a,   and 3912e-4b,
provides that a commissioners     court in a county    "with a
population of 355,000 or more . . . may adopt and enforce
uniform rules on the hours of work of department         heads,
assistants, deputies, and other employees whose compensation
is set or aovroved by the court."            [Emphasis added].
Section 270.006 provides that an officer or employee of the
county must provide the commissioners court with information
on the use of equipment in the charge of the employee        or
officer.

     Sections 151.001-151.004, derived from former articles
3902, 3912e, 3912e-13, regulate only the commissioners'
power over appointments made by county officers and not the
commissioners' power over staff members already employed in
the county.    We conclude that those sections have no
applicability to the issue you present.

     We concede that Renfro v. Shronshire    566 S.W.2d 688
(Tex. Civ. App. - Eastland,     1978, writ ref'd n.r.e.),
decided seven years before the Caldwell County case, may
suggest a different result from the one we reach. The court
there held that the commissioners have no right to screen
applicants or to veto appointments to positions at various




                               p. 4791
Honorable Tim Curry - Page 6 (J&947)




salary steps made     by the county       clerk.     The    court
considered, in addition,   the commissioners'      authority   to
require that county officials    supply   a  form   showing   the
ethnicity and gender of all employees       and indicating    any
equal opportunity hiring and promoting efforts that should
be attempted where the work force is found to be over-
representative of any one ethnicity or gender. The court
did not reach the latter issue, finding that there was no
justiciable controversy  presented..    In our opinion,       the
holding   in Renfro with respect to the           commissioners'
authority over appointments   is not determinative       of the
issue you present, which relates to the commissioners'
authority over personnel already   in county employment.       As
the court did not reach the issue regarding         the gender/
ethnicity form, we must regard any indications        as to the
commissioners' lack of authority as mere dicta.

     Therefore,   in our opinion, the commissioners        may
require performance evaluations    for the purpose of making
their final budgetary determinations    as to the salaries  of
the District Attorney's employees, which determinations    are
solely within   the commissioners*   prerogative (so long as
they consider   them "warranted by the facts and law and
required by the interest of ,the taxpayers," and so long as
the total amount budgeted -in a fiscal year does not exceed
the balances in county funds as of the first day of the
fiscal year, plus the anticipated revenue       for the fiscal
year as estimated by the county auditor.    Local Gov't Code,
9 111.039(b)).

                        SUMMARY

           In arriving at the salary figures to be
        included in the county budget for personnel
        of the District     Attorney's  office,   the
        commissioners court of Tarrant    County may
        approve, disapprove   or modify the salary
        figures proposed by the District Attorney.
        The commissioners court may require perform-
        ance evaluations  whereby  salaries of per-
        sonnel in the District Attorney's office are
        set for budgetary   purposes by the commis-
        sioners court. The commissioners court may
        not require that the fixing of salaries    of
        such personnel by the District Attorney,  for
        purposes of proposing such salary figures to
        the commissioners  court, be based on such
        performance evaluations.




                               p. 4782
    ,

        Honorable Tim Curry - Page 7 (JM-947)


h




                                           l-l /ttd@
                                               Very truly yo   ,

                                                   A&
                                               JIM     MATTOX
                                               Attorney General of Texas

           MARYKELLER
           First Assistant Attorney General

            LOU MCCREmY
            Executive Assistant Attorney General

            JUDGE ZOLLIE STEAKLRY
            Special Assistant Attorney General

            RICK GILPIN
            Chairman, Opinion Committee

            Prepared by William Walker
            Assistant Attorney General




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