THE ATTORNEY GENERAL
OF TEXAS
April 20, 1990
Honorable Jack Skeen, Jr. Opinion No. JM-1160
Criminal District Attorney
Smith County Courthouse Re: Authority of a county to
Tyler, Texas 75202 make exceptions to its standard
sick leave policy (RQ-1938)
Dear Mr. Skeen:
You ask the following questions:
1. May a county grant additional sick
leave to a county employee who has exhausted
his allowed sick leave?
2. May a county permit county employees
to transfer or pool their unused sick leave
for the benefit of another county employee
who has exhausted his allowed sick leave?
Section 152.011 of the Local Government Code, formerly
article 3912k, V.T.C.S., provides:
The commissioners court of a county shall
set the amount of the compensation, office
and travel expenses, and all other allowances
for county and precinct officers and
employees who are paid wholly from county
funds.
This office has concluded that sick leave benefits
constitute "compensation . . . and all other allowances" for
the purpose of section 152.011. Attorney General Opinions
JM-910 (1988); H-860 (1976).
Your first question concerns the granting of additional
sick leave to a county employee who has exhausted his sick
leave. Since sick leave is considered a form of compensa-
tion or allowance, there would appear to be a constitutional
problem in granting sick leave retroactively. Article III,
section 53, of the Texas Constitution prohibits a county
from making "any extra compensation, fee or allowance" for
county employees retroactive. See Attorney General Opinion
JM-1113 (1989).
Honorable Jack Skeen, Jr. - Page 2 (JM-1160)
Section 152.013(a) of the Local Government Code pro-
vides that the commissioners court shall set "salary,
expenses, and other allowances of elected county or precinct
officers" at a regular meeting of the court during the
regular budget hearing and adoption proceedings. However,
opinions of this office have concluded that compensation for
county employees may be set at any time of the year.
Attorney General Opinions JM-1113 (1989); JM-839 (1988);
H-11 (1973). We believe that the commissioners court may
set guidelines for additional sick leave for county employ-
ees to become effective prospectively any time during the
year. The fact that one employee may receive greater sick
leave than another employee would appear to be permissible
so long as the additional benefits conferred under the
guidelines are not dependent upon factors that might consti-
tute an abuse of discretion. w Attorney General Opinion
JM-910, suvra.
In your second question you ask whether a county may
permit its employees to transfer or pool their annual sick
leave for the benefit of another employee. Commissioners
courts may exercise only such powers as the constitution or
the statutes have specifically conferred upon them, or which
may be reasonably inferred from a specific power. Canales
v. Lauahlin, 214 S.W.Zd 451 (Tex. 1948); Tex. Const. art. V,
5 19.
Article 6252-8e, V.T.C.S., which became effective
September 1, 1989, provides for the creation and operation
of a sick leave pool for state employees. However, there is
no statutory provision authorizing the implementation of a
sick leave pool for county employees.
The question is presented whether it may be reasonably
inferred from the authority granted commissioners courts to
set compensation and other allowances that the court has the
power to grant employees permission to transfer sick leave
into a pool for the benefit of an employee who has exhausted
his sick leave. A sick leave pool does more than provide
compensation to employees. It provides an administrative
structure for transferring sick leave from one employee to
another, and thus is not authorized by section 152.011 of
the Local Government Code.
Attorney General Opinion JM-1019 (1989) concluded that
absent an authorization by the legislature permitting an
official to donate a portion of his salary to the county,
p. 6120
Honorable Jack Skeen, Jr. - Page 3 (JM-1160)
a county commissioner may not make such a contribution.1
But see Local Gov't Code 5 152.002 (statute adopted after
issuance of Attorney General Opinion JM-1019 allows county
to accept donation of officer's salary).
We conclude that a commissioners court, absent legisla-
tive authorization, may not grant county employees permis-
sion to transfer a portion of their sick leave for the
benefit of another county employee.
SUMMARY
The commissioners court may set guide-
lines for additional sick leave for county
employees to become effective prospectively.
The commissioners court may not authorize
county employees to transfer unused sick
leave into a sick leave pool for the benefit
of other emnlovees.
MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
1. Section 152.052 of the Local Government Code pro-
vides that if an elected county officer files an affidavit
with the county clerk stating that the officer elects not
to be paid for the officer's services, the county payroll
officer may not issue a paycheck to the officer.
p. 6121