August 31, 1970
Honorable Jw Reeweber Opinion No. M-678
County Attorney
Harris County Courthouse Re: May Harris County create
Houeton, Texas 77002 the position of executive
assistant to the four County
Commissioners under the
stated fact situation and
Dear Mr. Resweber: related questiona.
Your recent request for an opinion asks for an
answer to questions as follows:
"1. Is the Commissioners Court authorized
to create the position of executive afssistantto
the four (4) County Commissioners (and provide
for a salary of $14.400.00 per year and an auto-
mobile and other equilxaentfor much porition) at
thin time without ruch position having be&n pre- ""
viously approved and eatabliahed in the 1910
County Budget?
”2 . Could such action legally be taken by
the Conunisrrioners
Court without the matter having
been specifically included in the written notice
of the meeting at which such action was taken?
“3. Can Harrie County legally expend funds
for the payment of the salary and automobile
(and equipnent) prwided for as indicated in "1"
and “2” above?"
In answer to your fir8t question, it is our opinion
that the Conmimuioners Court is authorized to hire an "execu-
tive amrL8tant" and prwida for him indicated eguipmenh for
tha purpose of performing adminimtrative and executive func-
tion8 and dutias a@ an employee. So’ long as thm dimamtimuy
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Honorable Joe Resweber, page 2 (M-678)
and policy making functions of the coanniaaioneraare not dela-
gated to the employees, no legal inhibition is involved.
In 15 Tex.Jur.Zd 277, Counties, Section 48, it is
stated:
"In the absence of an enabling statute the
powers of a commiaaionera' court that involve
exercise of judgment and discretion cannot be
delegated. . . ."
This office has previously held, in Opinion O-1175,
(1939) that there is no authority for the office of "w
aentative" of the commissioners court: however, where the
Dallas County Commissioners Court hired an engineering firm to
assist the county road engineer, an employee, the court said:
II.. . It is further well settled that the Com-
missioners' Court may employ persona to assist even
an officer in the performance of statutory duties:
. . . or to perform services which do not involve
the exercise of any qwernmental function: . . ."
Hill v. Sterrett, 252 S.W.Zd 766 (Tex.Civ.App. 1952,
Ref. N.R.E.) citing Terre11 v. Greene, 88 Tex. 539,
31 S.W. 631 and Strinser v. Franklin Countv, 123 S.W.
1168 (Tex.Civ.App. 1909, no writ.).
The general rule is that counties have implied
authority to employ agents and servants. 20 C.J.S. 896,
Counties, Section 101(l): p. 1014, Sect. 180.
In gano v. Palo Pinto Countv, 71 Tex. 99, 8 S.W. 634,
636 (1888). the Supreme Court of Texas recognized that it is
the duty of the CoanniaaionersCourt ". . . to select themselves
such agents as may be necessary to assist them in the discharge
of their functions. . . .'I
Again, in md 61Abbott v. m, 162 Tax. 617,
350 S.W.Zd 333 (1961), the Supreme Court was faced with the
question of whether the Commiaaioner8 Court had the implied
authority to contract for certain sorviwa. Noting tha con-
stitutional and statutory duties and functions of the Coaaaia-
aionera Court, the Court made the following holding:
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. .
Honorable Joe Hesweber. page 3 (M-678)
"Admittedly the Commiaaionera Court is not
expressly clothed with constitutional or statutory
authority to contract for the services detailed ?.I?
this agreement, but we think that authority is im-
plied from the powers that have been expressly
granted to and the duties imposed upon this body
by law. ” (at p. 334).
In view of 'the foregoing, we must hold that the Harria
County Commiaaionera' Court has the implied power to hire an
"executive assistant" employee to assist the commisaionera in
the discharge of their functions and duties. Howaver, this
position is not an office and the holder thereof may not in any
measure usurp the functions and duties of the members of the
Commiasionera' Court as public officers. It necessarily follows
that the commissioners court also has the authority to pay the
employee a salary and provide him with the equipment reasonably
necessary to perform the functions for which'the employee or
assistant was hired. This would include an automobile, pro-
vided it,waa deeme necessary to accomplish the task of the
position.
Answering your next question, we note that budgetr
for counties over 225,000 population are controlled'by Article
1666a, Vernon's Civil Statutes, which reads, in part, as follows:
II
. . . Upon final approval of the budget
by the Commissioners Court, a copy of such budget
as approved shall be filed with the County Auditor,
the Clerk of the Court, and the State Auditor, and
no expenditures of the funds of the county shall
thereafter be made except in strict compliance with
said budget. . . ."
This article further allows for the transfer of sur-
plus budgeted funds, during a year, to another fund, as long
as the total budget is not inaeaaed.
Article 1666a further provides in part that:
II
. . . The amount set aside in any budget
for any purchase order or requisition, contract,
special purpose, or salary and labor account shall
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. .
Honorable Joe Reoweber. p89e 4 (M-678)
not be available for alloc8tion for ahv other
purnoae unless an unexmnded balance remains ia
the account after full discharqe of the obliaat&:
or unless the reauiaition. contract, or alloaatiq
has Men cancelled in writinq bv the Coaania8ionu8
c
In answer to your budget question, we have concluded
that the salary for the new aaaiatant can be provided for if
the proviaiona for re-allocation of budgeted funda, emphe8ised
above, are strictly complied with, and the total budget is not
increased. Your 8econd question is thus anmwered in tha affir-
mative.
Your second question raise8 the gueation of whothar
specific notice to the public is required in the abwe m8ttum.
Routine matter8 of bu8ine88, 8uch a8 the hiring of an'employee,
may ba considered oven though not mentioned in the notice ,of
meeting required by Article 6252-17, Vernon'8 Civil'Statute8,
as amended by Senate Bill 26, Chapter 227, 618t.Leqi8lature;
The statute expres8ly excepts frcm its application thole de-
liberations wherein consideration is given to the appointment
or employment of an employee. If such could be accompli8hed in
a "closed meeting" it would not appear that the name would nec-
essarily have to be included in the notice to the public, which
may ba excluded from that type of proceeding.
Cur answer to your first question include8 tha answer
to your third question.
SUMMARX
The Commissioners Court is authorized to
hire an "executive aaaiatant" to the four corn-
miaaionera, with proper limitationa of power,
and to provide such employee with variou8 item8
of eguipnent and an automobile nema8ary for the
performance of hi8 duties. The expen8e of the
position, including salary, may be met by re-
allocation of budgeted funds if the methods fa
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Honorable Joe Reawbu, pSqe 5 (M-678)
re-allocation set aut in Article 1666a, Vernon'8
Civil Statutes, are strictly adhered to. It 18
not necerrary to ?OSt notic of the hiring Of 8r.
employee prior to camni88ionera caurt meeting.
Prepared by Melvin E. Corley
Aaaiatant Attorney Qeneral
APPROVED:
OPINION CCMMIlYBB
Kerns Taylor, Chairman
W. E. Allen, Co-Ch8irmen
Gordon Cans
'Bob Plowers
John Banks
Roland Allen
MEADE F. GRIFFIN
Staff Legal ASSiStant
ALFRED WALKER
Executive ASSiStant
NOLAWHITE
First ASSiStSnt
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