Untitled Texas Attorney General Opinion

.

THE ATTORNEY GENERAL
OF TEXAS

May 25, 1988

Honorable Michael J. Guarino opinion No. JM-910
Criminal District Attorney
405 County Courthouse Re: Whether a commissioners
Galveston, Texas 77550 court is authorized to grant
vacation and sick leave
benefits to elected and
appointed county officials,
and related questions
(RQ-1178)

Dear Mr. Guarino:

You ask a series of questions regarding the authority
of a commissioners court to grant vacation and sick leave
benefits to both elected and appointed county officials and
to pay such officials for the unused portions thereof.
Because resolution of the issues raised by your questions
rests upon an understanding of a rather elaborate sequence
of facts, we set those facts out first in detail.

YOU inform us that the present Galveston County
Personnel Policies Manual, which was duly adopted by the
commissioners court in 1983, does not authorize expressly
the accrual of vacation and sick leave benefits for elected
appointed county and precinct officials, with the
i&sible exception of the county commissioners, who
expressly are included with regular employees in the present
1983 manual. Previous personnel policy manuals also failed
to authorize expressly the accrual of such benefits for
elected and appointed officials. You have included copies
of the 1969, the 1977, and the 1983 manuals for our
inspection.

Despite the absence of unambiguous authorization for
accrual of benefits, however, in approximately January 1978,
P the employment records of all elected and appointed
officials in Galveston County began reflecting accumulated
sick leave and vacation benefits that were calculated and
entered into the records by the Galveston County Auditor
then in office. You state that the reason the County
Auditor began such a practice is unclear: you indicate that

P. 4519
 .

Honorable Michael J. Guarino - Page 2 (JM-910)

accrual of these benefits was never expressly authorized by
the Galveston County Commissioners Court. The practice was
terminated on March 31, 1985, when the succeeding County --.
Auditor deleted the benefits from the payroll records of all
elected and appointed Galveston County officials.

You inform us that between January 1978 and March 31,
1985, eleven elected and appointed county officers retired,
died, or resigned and were paid (or their estates were paid)
for their accumulated vacation and/or sick leave, as
reflected by their payroll records, up to the maximum
allowed under the Personnel Policies Manual adopted by the
county. Two additional elected officers left office after
March 31, 1985, and were paid for such accrued benefits by
the present county auditor. YOU include a list of the
titles of the 13 officers who received such benefits and the
amounts of compensation that each received. Five elected
officers left office during this period and were not paid
for their accrued benefits. We now turn to your first
question.

First you ask:

In light of the historical development of
this issue, does the Commissioners' Court OF
Galveston County have the authority to grant
vacation and sick leave benefits to elected
and appointed officials payable upon their
vacating their present public offices?

Subchapter B of chapter 152 of the Local Government
Code, formerly codified as article 3912k, V.T.C.S., sets
forth the relevant provisions regarding the authority of the
commissioners court to set salaries and compensation for
county officers and employees. Section 152.011 of the Local
Government Code provides: "The commissioners court of a
county shall set the amount of the compensation, office and
travel emenses. and all other allowances for county and
precinct officers and emulovees who are xiii wholly from
countv funds." (Emphasis added.) Subsection 152.013(a) of
the Local Government Code sets forth the following:

Each year the commissioners court shall set
the salary, expenses, and other allowances of
elected countv or nrecinct officers. The
commissioners court shall set the items at a
regular meeting of the court during the
regular budget hearing and adoption
proceedings. (Emphasis added.)

p. 4520
 Honorable Michael J. Guarino - Page 3 (JM-910)

This office already has concluded that sick leave
benefits constitute "compensation . . . and all other
- allowances" for purposes of section 152.011 of the Local
Government Code, Attorney General Opinions H-860, H-797
(1976), as does vacation entitlement, Attorney General
Opinion MW-136 (1980). Entitlement to holidays has also
been held to be a form of ncompensation.l' Attorney General
Opinion MW-438 (1982).

In Attorney General Opinion H-860 (1976), this office
was asked whether elected county and precinct officials may
be compensated for unused sick leave. A county commis-
sioners court had provided by resolution that elected and
appointed officers and employees would accrue sick leave,
and that persons whose employment is terminated were
entitled to compensation for unused sick leave of up to a
specified number of days. The opinion declared that the
commissioners' resolution was authorized prior to the
effective date of article 3912k, V.T.C.S., by now-repealed
article 2372h-1, V.T.C.S., as to county and precinct
employees: after the enactment of article 3912k, the
commissioners' resolution was authorized by that statute.
See Attorney General Opinion H-797 (1976) (County may
compensate emolovees for unused sick leave.)

Regarding officers, however, the opinion noted that,
before the effective date of article 3912k, no statute
furnished specific statutory authority for the accrual of
sick leave by county and precinct officers. The opinion
went on to conclude, though, that three statutes then in
effect impliedly offered such authority:

In, our opinion, these statutes,
authorizing the commissioners court to fix
salaries of county and precinct officials,
were sufficient authority for the
commissioners court to provide for the
accrual of sick leave by those officials, and
to compensate them for the unused portion of
any such sick leave. In Attorney General
Opinion M-1252 (1972), this Office found that
compensation for unused vacation time
constitutes payment of "salary."

Attorney General Opinion H-860, m at p.2. The opinion
concluded the discussion of this issue by stating that the
commissioners court, both before and after the effective
date of article 3912k, was authorized to provide sick leave
for the various county and precinct officials and that the
commissioners court was then authorized to compensate those

P. 4521
Honorable Michael J. Guarino - Page 4 (JM-910)

officials for the unused portion of any sick leave earned
during that period.

On the basis of Attorney General Opinions MW-438
(1982); H-1142, H-1113 (1978); H-860, H-797 (1976), as well
as the plain language of sections 152.011 and 152.013 of the
Local Government Code, we conclude that the commissioners
court of Galveston County is authorized to grant to those
county and precinct officers and employees whose
"compensation" may be set by the court vacation and sick
leave benefits and to compensate recipients for the unused
leave benefits. but e Local Gov't Code, 5152.017 (List of
offices to which sect:& 152.011 does not apply.)

Your question is general in scope: although you ask
about "county and precinct officers," we limit our
discussion to those officers that were previously compen-
sated for unused leave. The general rules of law that we
enunciate regarding those officers who have received
compensation apply also to all other county and precinct
officers and employees whose "compensation" may be set or
supplemented by the commissioners court.

The list of officers who received compensation includes
a county court judge, a district attorney, and a purchasing
agent. Although section 152.017 of the Local Government
Code specifically excludes the district attorney and county
court judge from the reach of subchapter B of Chapter 152,
the statutes creating these offices provide that the
commissioners court may set or supplement the salaries for
these offices. m Gov't Code, 525.0862. Compensation for
a purchasing agent is governed by section 262.011(k) of the
Local Government Code, which provides that the board that is
empowered to appoint him is empowered also to set his
compensaton. The commissioners court then has a ministerial
duty to approve such compensation set. see Attorney
General Opinion M-708 (1970).

You next ask:

In light of the historical development of
this issue, is the Commissioners' Court of
Galveston County presently required to pay to
those elected and appointed county officials
whose employment records reflect accumu-
lated vacation and sick leave time for such
benefits upon their leaving their present
public offices?

p. 4522
 Honorable Michael J. Guarino - Page 5 (JM-910)

In answer to your first question, we declared that
chapter 152 of the Local Government Code authorizes a
- commissioners court to grant vacation and sick leave
benefits and to compensate recipients for the unused
portions thereof to those county and precinct officers and
employees whose "compensation" may be set by the court. On
the basis of the information that you have submitted to us,
we cannot state that the commissioners court of Galveston
County is required to compensate those elected and appointed
county and precinct officers whose employment records
reflect such accumulated benefits, because we have no
evidence that the commissioners court ever properly adopted
any resolution so providing. YOU stated in your letter
requesting our opinion that neither the present Personnel
Policies Manual nor any of its predecessor manuals expressly
authorize the accrual of vacation and sick leave benefits to
county and precinct officers, other than to the commission-
ers themselves. See also Attorney General Opinions JM-599,
JM-430 (1986); H-1142 (1978): H-860, H-797 (1976) (compensa-
tion policies set in personnel manuals adopted by resolution
by the commissioners courts or adopted in resolutions them-
selves). Nothing that you have submitted in connection with
your opinion request purports to be such an authorizing
resolution. The Personnel Manuals that you have submitted
,with your request reach employees and commissioners; they do
not reach all elected and appointed county and precinct
officers. Section 402.042 of the Government Code does not
empower this office to make findings of fact while in the
process of issuing opinions. We are unable to say,
consequently, whether the commissioners court has in fact
authorized such a policy.1

1. You suggest that, since the county budgeted and
compensated certain specified officers for the unused
portion of their accrued benefits between 1978 and 1985, it
is now estopped from claiming that it is entitled to
reimbursement in the event that'it is determined that the
commissioners court did not authorize properly the vacation
and sick leave benefits. The principle of estoppel
ordinarily is not applicable to the state or to a political
subdivision while it is acting in aid of the government's
sovereign powers. See, e.s., T & R Associates Inc. v. Citv
of Amarillo, 688 S.W.Zd 622 (Tex. App. - Amarillo 1985, pet.
ref'd n.r.e.): Davis v. CitV of Abilene, 250 S.W.2d 685
(Tex. Civ. App. - Eastland 1952, writ ref'd). The basis of
estoppel is deception, and in its absence there can be no
(Footnote Continued)

P. 4523
Honorable Michael J. Guarino - Page 6 (JM-910)

7

You next ask:

If the Commissioners* Court is not required
to pay these benefits, is the Commissioners'
Court legally obligated to attempt recovery
of those funds previously paid to the
thirteen elected and appointed officials
enumerated above? In addition, is there a
viable distinction between the three retired
County Commissioners who were arguably
included in the Personnel Policies Manual and
the Purchasing Agent whose request was
specifically approved and the other elected
and appointed officials?

If the benefits about which you inquire were granted
without commissioners court approval, such payments would
constitute an improper grant of public money in violation of
article III, section 52, of the Texas Constitution. In
Attorney General Opinion H-797 (1976), this office was asked
about the propriety of compensating employees for unused
sick leave. Therein we declared:

We do not believe that there are any
constitutional obstacles to the adoption of
such a policy. In Attorney General Opinion
H-51 (1973), we held that a county may not
authorize the payment of funds to the sur-
vivors of a deceased county employee if the
employee had no right to the funds at the
time of his death, because such payment would
constitute an impermissible gift or grant of
public moneys under article 3, sections 51,
52 and 53 of the Texas Constitution. But the
commissioners court was permitted, without
violating the constitutional prohibition, to
compensate the survivors for the decedent's
vacation time and any other compensation

(Footnote Continued)
equitable estoppel.. Bocanecra v. Aetna Life Insurance Co.,
605 S.W.2d 848 (Tex. 1980); Barfield v. Howard M. Smith Co.
of Amarillo, 426 S.W.2d 834 (Tex. 1968). On the basis of
the information that you have submitted in connection with
your opinion request, we conclude that the requisite
elements for the invocation of estoppel are not present.
Concord Oil Co. v. Alto Oil & Gas %-D 387 S.W:2d 635
(Tex. 1965); Gulbenkian v. Penn, 252 S.W.ih 929 (Tex. 1952).

P. 4524
 Honorable Michael J. Guarino - Page 7 (JM-910)
. .

previously earned by the employee. Since
your question contemplates that at the time
C
of his retirement the employee would be
compensated only for sick leave previously
earned, there would appear to be
constitutional inhibition affecting tE
implementation of such a policy. Thus, it is
our opinion that a county may compensate its
retiring employees for a portion of their
sick leave accrued but not taken.

Analogously, we conclude that any payments for benefits that
were made without the authority of the commissioners court
would also constitute an impermissible grant of public
funds. The county would be authorized to seek reimbursement
but could exercise reasonable discretion as to whether to do
so in a particular case. Such factors as the amount of
funds to be reimbursed, the ease of collection, and the
legal and other costs incident to collection might be
considered. See Attorney General Opinion MW-93 (1979).

We also understand you to ask whether the three retired
county commissioners and the purchasing agent occupy a
status other than the one occupied by the other elected and
appointed county and precinct officers. The Galveston
County commissioners appear to have granted themselves
vacation and sick leave benefits identical to those granted
to county employees by the commissioners court#s adoption of
the Personnel Policies Manual. There is no question, then,
that the conferral of benefits is proper at least as to the
commissioners themselves. The purchasing agent also appears
properly to have been conferred vacation and sick leave
benefits: you have included with your request for an opinion
a copy of a signed affidavit from the board authorized to
appoint the purchasing agent pursuant to now-repealed
article 1580, V.T.C.S., specifically requesting that the
purchasing agent receive such benefits and a copy of the
commissioners court resolution approving payment to the
purchasing agent who retired in 1984. See Attorney General
Opinion M-708 (1970).

You next ask:

If the Commissioners' Court of Galveston
County, Texas, adopts a policy to extend
vacation and sick leave benefits to those
elected and appointed officials who showed
such benefits on their employment records in
March, 1985, does the Commissioners‘ Court
have to extend such benefits to all elected

P. 4525
Honorable Michael J. Guarino - Page 8 (JW-910)

and appointed officials now and in the
future?

Section 152.011 of the Local Government Code authorizes
the commissioners court to set "compensation . . . and all
other allowances" for county and precinct officers and
employees who are paid wholly from county funds. The
commissioners court has discretion as to what kind of
benefits it chooses to offer the occupants of particular
offices. Just so long as the differences between officers
and/or employees is not so unreasonable as to constitute an
abuse of discretion, we see no reason why benefits conferred
may not vary, depending upon factors that the commissioners
court properly may consider.

In answer to the second part of your question, the
Texas Supreme Court has ruled that, so long as no vested
right is impaired, a duly-enacted statute or resolution that
serves to alter or reduce a benefit heretofore granted is
permissible. In the leading case of. Citv f Dallas
Trammell, 101 S.W.2d 1009 (Tex. 1937), the Texas Suprez;!
Court specifically upheld the constitutionality of
statute, the effect of which was to reduce the pensioz
benefits of a pensioner. The court cast the issue in the
following way:

As we view the matter, the true question
involved is this: Does the employee, after
retirement, have a vested right to partici-
pate in the pension fund to the extent of the
full amount of the monthly installments
granted to him at retirement; that is; does
he have a vested right in future installments
which cannot be affected by subsequent
legislation tending to dimish the amount of
such installments? Puttins the matter in
somewhat different lancuaoe, we may properly
inquire if the right which the employee has
to participate in the pension fund, acquired
by virtue of his contract, imposes upon the
city and the Legislature of the state (the
source of the city's power and authority in a
matter of this kind) the inviolable duty of
maintaining a pension fund of such propor-
tions as will guarantee the right to
defendant in error and others having equal
rights with him to participate to the full
extent of the monthly amounts previously
awarded to them at the time the right to
participate accrued? In other words, is the

P. 4526
Honorable Michael J. Guarino - Page 9 (JM-910)

Legislature without constitutional power to
repeal the laws upon which the pension system
of the City of Dallas is based, or to modify
their provisions in such way as to diminish
the pensions payable to those who have become
qualified to receive them so long as any one
who has been granted a pension shall live?

101 S.W.2d 1009, 1011.

The court concluded that

the rule that the right of a pensioner to
receive monthly payments from the pension
fund after retirement from service, or after
his right to participate in the fund has
accrued, is predicated upon the anticipated
continuance of existing laws, and is
subordinate to the right of the Legislature
to abolish the pension system, or diminish
the accrued benefits of pensioners
thereunder, is undoubtedly the sound rule to
be adopted.

101 S.W.2d 1009,1013. The Texas Supreme Court then declared
that a right, to be within the protection of the
constitution, must be a vested right or something more than
a mere expectancy based upon an anticipated continuance of
an existing law: in this instance, the court concluded that
the pensioners' rights were mere "expectancies.11 101 S.W.2d
1009, 1014-16. && also Woods v. Reillv 218 S.W.2d 437
(Tex. 1949); Hoard of Manaaers of the Harris Countv Hosoital
District v. Pension Board of the Pension System for the City
of Houston, 449 S.W.Zd 33 (Tex. 1969) (citing the Citv of
Dallas v. Trammel1 case with approval); Devon v. Citv of San
Antonio, 443 S.W.2d 598 (Tex. Civ. App. - Waco 1969, writ
ref'd); Attorney General Letter Advisory No. 5 (1973).
Accordingly, so long as no vested rights are impaired, we
conclude that the commissioners court is not required to
continue granting such benefits indefinitely in the future.

Finally you ask:

If the Commissioners' Court of Galveston
County, Texas, may adopt a policy to extend
vacation and sick leave benefits to all
elected and appointed officials (or alterna-
tively to those officials who show such
benefits on their employment records in
March, 1985), are such officials required to

p. 4527
Honorable Michael J. Guarino - Page 10 (JM-910)

abide by the vacation and sick leave benefits
limitations and procedures presented in the
Galveston County Personnel Policies Manual? --.

You do not specify just what "limitations and
procedures" are set forth in the manual with which you think
county and precinct officers must comply. Thus, we must
address your question in general terms. While this office
consistently has said that a commissioners court possesses
the authority to set county and precinct officers' and
employees' lVcompensation~*pursuant to section 152.011 of the
Local Government Code and its predecessor statutes,
see.e.a., Attorney General Opinions JR-430 (1986); MW-438
(1982); Mh'w-268 (1980); H-1142,H-1113 (1978); H-860, H-797
(1976) r this office also has held that the authority of the
commissioners court over the operation of other county and
precinct officers is limited. &=g Attorney General Opinions
JM-440 (1986); JR-182 (1984). In those opinions, we
concluded that, while the commissioners court is empowered
to set ~*compensation,**including salaries, vacation and sick
leave benefits, and holidays for county and precinct
officers and employees, the court does not have the
authority to set office hours for those officers. As a
general rule, a county or precinct officer would have to
comply with any reasonable requirements, so long as those
requirements do not interfere with the proper operation of
the other constitutional or statutory county or precinct
offices.

SUMMARY

1. The commissioners court of Galveston
County is authorized to grant vacation and
sick leave benefits to elected and appointed
county and precinct officers and employees
who are paid wholly from county funds.

2. Whether the commissioners court of
Galveston County presently is required to pay
to those elected and appointed county and
precinct officers whose employment records
reflect accumulated vacation and sick leave
benefits when they leave their present public
offices is a question of fact.
-,
3. If the award of benefits was without
the approval of the commissioners court, the
court could seek to be reimbursed by those
who received such compensation improperly.
?
The three retired county commissioners, who

P. 4528
 Honorable Michael J. Guarino - Page 11 (JM-910)
: .

were included with other county employees in
the county Personnel Policies Manual, and the
Purchasing Agent, whose conferral of benefits
was directed before his retirement by the
board that was responsible for his
appointment, are entitled to accrual and
receipt of such benefits.

4. If the commissioners court of Galveston
County adopts a policy to extend vacation and
sick leave benefits to all elected and
appointed county and precinct officers whose
employment records reflected the accrual of
such benefits in March 1985, the
commissioners court does not have to extend
such benefits to all elected and appointed
county and precinct officers. As long as no
vested right is impaired, the commissioners
court may, by resolution adopted in the
future, reduce or alter the benefits that are
presently granted.

5. Those elected and appointed county and
- precinct officers to whom vacation and sick
leave benefits are extended are not relieved
of the responsibility to comply with any
reasonable limitations and procedures set
forth in the Personnel Policies Manual that
do not interfere with the proper operation of
those constitutional or statutory offices.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUUGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General

P. 4529