July 10, 1989
Honorable Jimmy F. Davis Opinion No. JM-1070
Castro County District Attorney
Castro County Courthouse Re: Whether a commission-
Dimmitt, Texas 79027-2689 ers court is authorized
to set working hours and
holidays for road employ-
ees in a county that has
ex officio road commis-
sioners (RQ-1710)
Dear Mr. Davis:
You ask whether the commissioners court of Castro
County is authorized to establish working hours and holidays
for road employees in a county that has ex officio road
commissioners.
You furnish us with a copy of the personnel policy
adopted by the commissioners court in 1983. The policy
adopted by the court applies "to all employees of Castro
County," and provides the following work schedule:
1. The normal work week shall consist of
40 hours: eight hours per day, Monday through
Friday.
2. The responsible elected official will
determine the reporting time and leaving time
for the employees so as to achieve maximum
effectiveness of the county.
You advise that since the Fair Labor Standards Act was
held applicable to counties,1 the commissioners court in
1986 adopted a policy that the county would avoid overtime
whenever possible and use compensatory time when feasible.
See Attorney General Opinion JM-733 (1987). Additional
1. See Garcia v. San Antonio Metro. Transit Auth., 469
U.S. 528 (1985).
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Honorable Jimmy F. Davis - Page 2 (JM-1070)
information furnished by you reflects that the commissioners
court on January 12, 1987, and again on January 9, 1989,
adopted by resolution the system of organizing the commis-
sioners court for road construction that constitutes members
of the court as ex officio road commissioners. V.T.C.S.
art. 6702-1, 55 3.001-3.004. you advise that a question has
arisen concerning the authority of the commissioners court
to set the "normal work week" for road employees.
Section 3.001(a) provides:
(a) In all counties [operating under
sections 3.001-3.0041 the members of the com-
missioners court are ex officio road commis-
sioners of their respective precincts and
under the direction of the commissioners
court have charge of the teams, tools, and
machinery belonging to the county and placed
in their hands by the court. They shall
superintend the laying out of new roads, the
making or changing of roads, and the building
of bridges under rules adooted bv the court.
(Emphasis added.)
Additional authority granted a member of the court
serving as an ex officio road commissioner is set forth in
section 3.003(a), providing:
(a) Subject to authorization bv the com-
missioners court, each ex officio road com-
missioner may employ persons for positions in
the commissioner's precinct paid from the
county road and bridge funds. Each ex
officio road commissioner may discharge any
county employee working in the commissioner's
precinct if the employee is paid from county
road and bridge funds. Each ex officio road
commissioner also has the duties of a super-
visor of public roads as provided by Section
2.009 of this Act.
Section 2.009 authorizes a commissioner serving as an
ex officio road commissioner to supervise the public roads
in his respective precinct. The commissioner shall report
to each regular term of the commissioners court the condi-
tion of the roads and bridges in his precinct, the amount of
money in the hands of overseers subject to being expended on
roads, and the name of every overseer who has failed to
perform his duty.
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Honorable Jimmy F. Davis - Page 3 (JM-1070)
Article V, section 18, of the Texas Constitution pro-
vides that the commissioners court "shall exercise such
powers and jurisdiction over all county business, as is
conferred by this Constitution and the laws of the State, or
as may be hereafter prescribed." In the exercise of power
conferred upon the commissioners court, the court has
implied authority to exercise a broad discretion to accom-
plish the purposes intended. Cosbv v. Countv Commissioners
of Randall Countv, 712 S.W.2d 246 (Tex. App. - Amarillo
1986, writ ref'd n.r.e.). See aenerallv Attorney General
Opinion JM-801 (1987) (nepotism statute prevents ex officio
road commissioner from hiring son of another road
commissioner).
Section 2.002 of article 6702-l provides in pertinent
part that:
(a) The commissioners court shall:
(1) order that public roads be laid out,
opened, discontinued, or altered when
necessary
. . . . [and1
(b) The commissioners court may:
(1) make and enforce all reasonable and
necessary rules and orders for the construc-
tion and maintenance of public roads except
as prohibited by law;
(2) hire the labor and purchase the
machinery and equipment needed to construct
and maintain public roads.
In Brooks, Countv and Special District Law, 36 Tex.
Pratt. 5 40.7, at 405 (1989), the following comment is made
relative to the foregoing provisions of section 2.002:
These provisions essentially mean that the
county roads are open, constructed, and
maintained by the commissioners court as a
whole and not by individual county commis-
sioners. However, county commissioners
serving as ex officio road commissioners may
employ personnel for their precinct subject
to commissioners court approval. [V.T.C.S.
art. 6702-1, g 3.003(a).] Otherwise, all
road contracts, purchases of road' equipment
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Honorable Jimmy F. Davis - Page 4 (JM-1070)
and materials, and the employment of person-
nel are consummated by actions of the commis-
sioners court acting as a body. In practice,
however, individual commissioners have sub-
stantial influence over contracts awarded,
personnel hired, and the purchase of road
material. They do not, however, have any
authority to legally bind the county for the
most part.
The commissioners court can employ
personnel, execute contracts, and purchase
equipment for a commissioner's precinct over
his objection. [Attorney General Opinion
V-1424 (1952).] The employment of road per-
sonnel and the execution of road contracts
must be acted upon by the commissioners court
as a body and is an authority that cannot be
delegated to another such as the county
judge. [Attorney General Opinion V-532
(1948).] In short, even though each county
commissioner is responsible for supervising
road work in his precinct and keeping himself
informed as to road conditions, he generally
has little further authority.
-The commissioners court sets the amount of compensation
for county and precinct employees paid wholly from county
funds. Local Gov't Code g 152.011 (formerly V.T.C.S. art.
3912k, § 1). In Attorney General Opinion MW-438 (1982) it
was concluded that sick leave benefits, vacation entitlement
and paid holidays for county and precinct employees
constitute a form of compensation (under then article 3912k,
V.T.C.S.) and that the determination of same is within the
sole province of the commissioners court.
In Attorney General Opinion JM-182 (1984) it was con-
cluded that the commissioners court is not authorized to
establish working hours for elected county officials. In
that opinion it was stated that there is no general state
law which dictates office hours or the work week to be
observed by county officials and employees. While there is
no express state law authorizing the commissioners court to
determine the working hours for road employees, we believe
the control granted the commissioners court in the matters
of hiring road employees, setting compensation, determining
sick leave, vacation entitlement and paid holidays for all
county and precinct employees necessarily gives the commis-
sioners court implied authority to establish working hours
and holidays for road employees.
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Honorable Jimmy F. Davis - Page 5 (JM-1070)
SUMMARY
The commissioners court is authorized to
determine the working hours and holidays for
road employees in a county that operates
under the ex officio road commissioners
system pursuant to section 3.001(a) of
article 6702-1, V.T.C.S.
dzyh
MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
Pa 5579