Untitled Texas Attorney General Opinion

The Attorney General of Texas JIM MATTOX De'cember30, 1985 Attorney General Supreme Court Building Honorable Mike Driscoll Opinion No. JM-410 P. 0. Box 12546 Harris County Attorney Austin, TX. 76711. 2346 1001 Preston, Suite 634 Re: Whether employees of the Rarris 5121475-2501 77002 County Pre-trial Release Agency are Houston, Texas Telex 9101674.1367 Telecopier 51214750266 state or county employees Dear Mr. Driscoll: 714 Jackson, Suite 700 Dallas, TX. 75202.4506 You have requested our opinion with regard to two matters related 2141742-6844 to persons employc:dby the Harris County pre-trial bond board, which the county denominates the Harris County Pre-trial Release Agency 4624 Alberta Ave., Suite 160 [hereinafter the "Agency"]. The first issue is whether those El Paso, TX. 799052793 individuals are s1:ateor county employees. If these individuals are 9151533.3464 found to be count:7employees, the next issue is what is the rate of pay under the Fail:Labor Standards Act should be for an applicant who 1001 Texas, Suite 700 is an employee of another county agency and a part-time employee for Houston, TX. 77002-3111 the Agency. We first conclude, for the reasons below, that under the 7132255866 circumstances currently. those individuals are employees of Harris county. We also :onclude that the county is required to comply with section 207(a)(l) of the Fair Labor Standards Act of 1938, as amended, 606 Broadway, Suite 312 Lubbock, TX. 79401.3479 when computing the rate of pay of a county employee regardless of 8061747.5239 whether he is employed by two separate county departments or agencies. In regard to the first issue, there is no authority within the 4309 N. Tenth, Suite B state of Texas to establish a personal bond office except as provided McAllen. TX. 76501-1665 5121662.4547 by the state legislature. In 1973, the Sixty-third Legislature enacted article 2:~72p-2,V.T.C.S., authorizing the establishment of a personal bond office in two circumstances. An office may be 200 Main Plaza, Suite 400 established by the,commissioners court or by a judicial district. The San Antonio, TX. 76205.2797 provision provides the following in part: 51212254191 SecMon 1. Any counte, or any judicial An Equal OpportunitYl district. with jurisdiction in more than one Affirmative Action Employer county, with the approval of the commissioners court of each county in the district, 9 establith a personal bond office to gather and review :.nformatioaabout an accused that may have a bearing on whether he will comply with the conditic'ns of a personal bond and report its findings, to the court before which the case is pending. p. 1877 . . Honorable Mike Driscoll - Page 2 (JM-410) Sec. 2. (a) The commissioners court of a county that establishes the office, or the district and county judges of a judicial district that establishes the office, may employ a director of the office. (b) The dir,actor may employ the staff authorized by the cosmrissioners court of the county or the cokssioners courts of each county in the judicial district if the judicial district includes more than one county. (Emphasis added). V.T.C.S. art. 2372p-2. 51. The purpose of the personal bond office is to provide the district judge with information to determine the eligibility of accused persons for release on recognizance. -See V.T.C.S. art. 2372p-2, $1. In our opinion, the intention of the legislature in enacting section.2 was that the co!msissionerscourt would be the employer of the director and staff oi! the personal bond office, if the county established the office. See V.T.C.S. art. 2372p-2, 62(a). Even in where a judicial district is authorized to the second circumstance, --- establish an office, the commissioners court must give its approval of the staff before they may 'be employed by the director. Id. #Z(b). Rowever, the district and county judges of the judicial district that established the office, are authorized to employ the director of the office. -Id. 12(a). The Harris County ctnnmissioners court established a county personal bond office and employed s director and staff pursuant to article 2372p-2, V.T.C.S. In compliance with the legislative intent, we conclude that the staff '--those persons employed by the Pre-trial Release Agency of Earris County -- are employees of the county. In 1975, a reorganizaeion of the office was ordered by a federal district judge in an effort to reduce the Rarris County jail population. It specified chat the [olperational control of the Harris county Pre-trial Release,Agency is hereby transferred to the state District Judges of Harris County, Texas. The Commissioners Court retains budgetary approval of the agency. Albert1 v. Sheriff of Raqis County, Texas, 406 F. Supp. 649, 674 7S.D. Tex. 1975). Your letter indicated that the Agency is funded by Harris County as a part of the Adult Probation Department's budget and the Agency's employees hav'e been subject to the county's personnel regulations. You argue that this judicial reorganization of the p. 1878 Honorable Mike Driscoll - Page 3 (~~-410) Agency has caused the Agency's employees to come under the control and supervision of the state district judges and, thus, like the employees of the Adult Probation Department, they are state employees. See Code Grim. Pro. art. 42.12, 110; Clark v. Tarrant County, 608 F. Sz. 209 (N.D. T=. 1985). We disagree with this analysis. First. the sole intent behind article 42.:.:!of the Code of Criminal Procedure was to place the Adult Probaticn Department totally within the state judiciary. See Clark v. Tarrant County, supra, at 211. Secondly, the analysis is contrary to the organizational structure contemplated by the legislature in article 2372p-2, V.T.C.S. As indicated above, the purpose of a personal bond office organized pursuant to article 2372p-2 is to gather and review information that may have a bearing on an accused as to whether that individual will comply wtth the conditions of personal bond. See V.T.C.S. art. 2372p-2, 51. This information is to be reported to the court. Id. This is also the only relationship that the legislature intended to exist between the district judges and the Agency when the county commissioners have established the office. The judicial order did not alter this limit~?cl relationship. We are not authorized to review nor alter any judicial order in the opinion process; but, we can conclude that the crder does not create a conflict in the relationship between the Agency employees and the commissioners court as intended by the legislature. See Attorney General Opinion JR-287 (1984). The order does not circumvent the commissioners court'8 employing authority as provided for in section 2 of article 2372p-2. Therefore, these individuals are employees of the county. In regard to the sr!c.ondquestion, you inform us that Rarris County is inthe process of:evaluating those employees subject to the minimum wage and overtime provisions of the Fair Labor Standards Act of 1938, as amended, in l:&:htof a recent United States Sunreme Court decision. 29 U.S.C. §§2~~~(1982) et seq.; see also Garcia v. San Antonio Metropolitan Transit AuthoriT - U.S. 105 s.ct. 1005 (1985). You also inform% that an employee ofthe Harris County Juvenile Probation Department has applied for part-time employment with the Agency. At the present time, the applicant, a county employee. works at leasi: forty hours per week for the Juvenile Probation Department. Yor. ask what the proper rate of pay after his forty-hour work week with the Juvenile Probation Department would be if the applicant is employed by the Agency. The applicant is inc,tudedwithin the Fair Labor Standards Act's definition of a covered employee. See 29 U.S.C. §203(e)(2)(C)(1982) (individual employed by a political subdivision of a state). The act makes no exception for dir;trictdivisions of a political subdivision. Section 207(a)(l) of the act provides in part: p. 1879 Honorable Mike Driscoll - Page 4 (JM-410) no employer shaL:L employ any of his employees . . . for a wo&-week longer than forty hours unless such emplcmyeereceives compensation for his employment in excess of the hours above specified at a rate not let,sthan one and one-half times the regular rate at zhich he is employed. (Emphasis added). 29 U.S.C. §207(a)(1)(1982) Since the applicant will at all times be employed as a county employee within a staff position, we conclude that the county must comp:iywith section 207(s)(l) in computing his rate of pay. SUMMARY When a county commissioners court establishes a personal bond of E:Lce pursuant to article 2372p-2, V.T.C.S., those :.ndividualsemployed by the office are county employees. A county is also required to comply with section 207(a)(l:1of the Fair Labor Standards Act of 1938, as ameuded, (29 U.S.C. §207(a)(1)(1982) when computing the rate of pay of a county employee regardless of whether he is employed by two separate COUILI:~departments or agencies. JIM MATTOX Attorney General of Texas JACK RIGRTOWRR First Assistant Attorney Gl?neral MARY KELLER Executive Assistant Attommzy General ROBERT GRAY Special Assistant Attorney General RICX GILPIN Chairmen, Opinion Committes Prepared by Tony Guillory Assistant Attorney General p. 1880 .