Untitled Texas Attorney General Opinion

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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