Case Information

*1 opiniori lpo. 04388 1 Hon. J. D. Looney

County Auditor Rar: Bnploym~nt of additional deputies and clerks in Bowie'County while regular deputies Bode County and clerks are on vacation, Boston, Texas

Dear Sir: '.

Your request for'opiuion has been received and carefully con- sidered by this department. We quote from your request as follows:

"Where Steno's and Deputies takes a vacation forgone or Two Weeks, is the County liable for expense for extra help to carry on their work during their absence?" 'Article 39G2, Vernon's Annotated Texas Civil Statutes, reads inpart as follows:

uWhenever any district, county or precinct officer shall.require the serrices of deputies, assistants or clerks in the performance of his duties~he shall apply to t&County Commissioners' Court of his county for author- ity to appoint such deputies ; ,ass%stants or clerks, stat- ing by sworn application the nmber needed, the position to be filled and the amnmtto be paid. Said application shall be accompanied by a statement shoeing the probable receiptsfron fees, cdssioz~ and compensation to be collected by said office during the fiscal year and the probable disburs~ents which shall include all salaries and expenses of said office3 and said ccnrt shall make its order authorising the appointment of such deputies, as- sistants and clerks and fix the caapensation to be paid then within the linitations hereinprescribed and deter- nine the number to be appointed as in the discretion of said court lnaybe proper; provided that in~no case shall the Commissioners' Court or anynember thereof attsanpt to influence the appoinbnent of any person as deputy, as- sistant or clerk in any office. Uponthe entry of such order the officers applying, for such assistants, deputies or clerks shsll be authoriaed to appoint theta; provided that said compensation shall not exceed the na&mau amount hereinafter Seth out. The compensation which may be allowed to the deputies, assistants or clerks above naned for their services shall be a reasonable one, not to exceed the fol- lowing snlountsr . . .n

We quote from Opinion lo. O-l&l of this department as followsr "We are unable to find any statute dealing with the sub-, ject of vacations among counti officials. The same is true of deputies, assistants or other employees authorised to per- form services under the principal of any public office, with the etieption of Ai-title 1583b, Penal Code of Texas, 1925, which provides that every regularly assigned jailer, jail guard, or jail matron at any county jail in any city of more

than twenty-five thousand (25,000) inhabitants shall be allowed fifteen (15;) days vacation, in each year with pay, not more than two (2) members to be on vacation at the same time.

%xmnissioners Courts are courts of general jurisdiction when acting within the sphere of the powers and duties confer- red upon thmu, however, they are courts of limited jurisdiction in that their authority extends orily to matters pertaining to the general welfare of their respective counties and that their powers are only those expressly or impliedly conferred upon them by law -- that is, by the Constitution and statutes of the 11 Tex. Jur. para. 37, p. 564. State.

"The law imposes upon each elective official of a county certain duties connected with his offioe which he is obligated to faithfully discharge and perform. He is responsible for cer- tain acts of his deputies; and in the matter of attending to and performing the duties of his office, the law holds him re- sponsible. Kany duties connected with a public office must necessarily be performed by olerical workers and assistants, who consequently perform their duties solely under the direction of the principal in office. Especially is this true where their duties are not regulated by statute.

"The status of the various deputies, assistants or clerks, as provided in the above-quoted statute, are varied. ,Sheriff deputies, constable deputies and all county clerk deputies are considered public officers. In a true sense, they perform gov- ernmental functions, and where their duties are not prescribed or regulated by statute, they perform a public service, sharing the~responsibility of office with their principal. Such offi- cers stand on a footing different from mere county employees -- the services and employment of the former being authorized by law, the latter being based upon contract with the conmissioners COUI”L

"An examination of the acts of the various legislatures for several years past discloses that the general appropriation bill provisions, as affecting State mriployees, permit twelve (12) working day vacations, when agreed to between the official and

his enrployees. If it can be said that the State has adopted~a policy of allowing paid,vacations, a law which requires a public officer to serve a year before being allowed such vacation would, in our opinion, contravene such declared policy, depriving the government oft better and more efficient service, which is the only principle upon which such vacations can be sustained.

"Such matters of general office routine or mode in which a public officer, with the help.of his authorized deputies, assistants and clerks, performs the duties'of his office, where not regulated by statute, are not vested in the ccezmissioners court. We cannot help but view the matter of regulation of hours ,andvacations of public offi- cers in all governmental and political units of the govem- ment as being solely-one of executive, adninistrative~dis- cretion,~subjedt to be withdrawn orcontrolled by the Leg- islature.

"Vacations are closely identified with general adnin- istrative powers vested in the holder of a public office. The only principle upon which vacations are permitted, inso- far as a declared policy of the government would authorize same, appears grounded on a settled policy of employees or public officers entering into an agreement with their depart- mental or.office head, under the latter's supervision and direction.

"As vacations directly affect the discharging of the duties of a particular office, the responsibility for which reposes in the principal of such office, the Commissioners Court, being nowise charged with such responsibility, would not be authorized, in the absence of legislative authority, to assume control and attempt to regulate the same. "It is, therefore, the opinion of this departmentthat the commissioners court of a county does not have the au- thority to pass an order providing that no vacations with pay shall be allowed any mnployees of the county or deputies or assis'tants of county officers until and unless such persons have been mnployed for a period of one year. Such order, be- ing beyond the scope of power and authority vested in the Coznzissioners Court, is ultra vires and void." We quote from Opinion No. O-1876 of this department as follrms: "You are respectfully advised that it is the opinion of this department that the county clerk has the authority to pay a deputy his regular salary during the absence of'such deputy from eaployment due to sickness or vacation for a rea- sonable length of time."

We enclose herewith copies of Opinions Nos. O-l&l and O-1876. that the county attorney Opinion No. 04620 of this ~p@$wpt holds stenographer and pay of Walker County, Texas, has no authority to eplploy a her a salary as an authorized expense out of his fees of office. This opinion defines the term "stenographer.*'

Opinion No. O-1874 of this department, holds that when the county attor- ney of Liberty County, Texas, ccmplies with Article 3902, V.A.C.S., a l'clerkn maybe appointed for such county attorney.

Opinion No. O-1930 of this department holds that neither the county attorney nor the commissioners' court has any statutory authority to employ a stenographer for the county attorney of Johnson County, Texas, and pay for same out of county funds. This opinion further holds that the commissioners' court of~Johnson County, Texas, a salary county, having a population in excess of 20,000 inhabitants according to the last preceding Federal Census, may author- ize the employment of a stenographer by the county judge and pay for such serv- ices out of the general fund of the~county to an amount not to exceed Twelve Hundred Dollars ($1200.00) per year.

Opinion No. O-4776 of this department holds that the commissioners' court of sector County, Texas, a fee county, having a population of less than 20,000 inhabitants according to the last preceding Federal Census, could not employ a stenographer for the county judge or the conmissioners court, This opinion holds however that the ccmmissi~ners~ court of Ector County could au- thorize the county judge of such county to appoint a clerk.

We enclose herewith copies of Opinions Nos. o-1620, O-187& O-1930 and O-4776.

Subdivision (a) of Section 13 of Article 3912e, Vernon's Annotated Texas Civil Statutes, applicable to counties having a population of 20,000 in- habitants or.more and less than 190,000 inhabitants, according to the last pre- ceding Federal Census, is applicable to Bowie County, Texas, a county within the above population brackets, and said subdivision reads as follows:

"The ccmmissionersl court may authorize the employment of a stenographer by the county judge and pay for such services out of the general fund of the county to an amount not to exceed Twelve Hundred ($1200.00) Dollars per year." It is our opinion that the only stenographer authorized by law for any Bowie County official is the stenographer for the county judge described in the next above quoted subdivision, No stenographer could be.employed by any county official of Bowie County except for the county judge. The sum of $1200.00 per annum is the limit which could be paid to the Bowie County Judge's stenographer. It is also discretionary with the ccaunissioners' court of Bowie County as to whether they will authorize the county judge to employ such steno- graph-.

It is our opinion that it is discretionary with the commissioners' court as to whether it will authorize the employment of extra or additional deputies, assistants and clerks for the various county officials during the time the regular deputies, assistants and clerks may be on vacations. In the absence of authorization of the canmissioners court as outlined by 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 properly author- ized by the conanissioners~ court under Article 3902, V.A.C.S., supra, such additional deputies, clerks and assistants would be entitled to be paid from the Officers' Salary Fund of your county.

Very truly yours, ATTOEEEY GENE&U, OF TEEAS By /s/ Wm. J. Fanning Wm. J, Fanning, Assistant @PROVEDJUN 24, 19b3

/s/ Grover Sellers FIBSTASSISTANTATTOBliEYGEEERAL

&PlZOi'EDt OPINiON' C-TEE

BP: BWB,.QIAIIWLN

WF:dbrwb

Enclosures