AUS’FIN. T’EXAS %iJ711
CRAWFORD c. MARTlN
#x-row o-
September ~10, 1968
Honorable Henry Wade Opinion No. W- 277
District Attorney
Dallas C,ounty Re: Whether the Commissioners Court
Dallas, Texas 75202
.- of Dallas County has the op-
tion to expend bounty funds
in’the repair, maintenance and
operation of court houses and
other public’buildings through
its own employees or through an
Dear Mr. Wade: independent contractor.
We have received a request from your office-for an
official opinion in regard to,the above stated matter. We quote
from your,request a0 follows:
“The Commissioners Court of Dallas County,
Texas, has asked thie office tomrequest from you
your official opinion a8 to the proper answer to
the following legal question:
“‘Does the Commissioners’ Court of Dallas
County have the option to expend county funds in
the repair, maintenance Ind operation of court.
houses and other necessary public buildings,
either by accomplishing its statutory duty and
authority under Article 2351, V.A.C.S.;throtigh
ita own employees or through independent con-
tractors? ’ ’
“It is our tentative opinion..thatthe Com-
missioners’ Court of Dallas County has the power
and authority to accomplish any of the statutory
duties contemplated by Article 2351, V.A.C.S., at
its option and at its election, by’contracting for
the performance thereof either, by and through
county emploqeee or by and through independent
contractora.
The pertinent provision of Article 2351, Vernon’s Civil
Statutes, provides:
- 1340-
. -
Hon. Henry Wade, page 2 (M-277)
"Each commissioners court shall:
11
. . .
"7 . Provide and keep in repair court houses
jails and all necessary public buildings.
II
. . .II
The above quoted provision of Article 2351 -was considered
in detail by the Texas Supreme Court In Anderson v. Wood, 137 Tex.
201, 152 S.W.2d 1084 (1941). The court stated at page TO&:
'We will first discuss the question as to
who has the right to employ and discharge the
court house engineer, janitor, and elevator op-
erators. The exact question here under con-
sideration does not appear to have ever been
judicially determined In this State. Our
Constitution, Article V, Section 18, Vernon's
Ann. St., provides In part as follows: 'The
county commissioners so chosen, with the county
judge, as presiding officer, shall compose the
County Commissioners Court, which 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.' While under the above constitutional
provision the jurisdiction of the Commissioners'
Court over county business is not general and all-
inclusive, but is limited to such as Is specifically
conferred by the Constitution and statutes (Mills
County v. Lampasas County. 90 Tex. 603, 40 S.W. 403), yet
the Commissioners' Court is the acting governing body
of the county Ehlinger v. Cl k 117 T 54'1 549
8 S W 26 bbb*'Jernigan v. Finlz,'gO Texexb05, 58 S.G.
24;'AAderson'v. Parsley, Tex.Clv.App. 37 S.W.2d 358.
It is the general business and contracting agency of
z;;c;u;;y, and it alone has authority to make con-
ndinn on the county, unless otherwise
specifically provided by,statute. 11 Tex.Jur. 630;
American Disinfectin Co. v. Freestone County, Tex.
Civ.App., 193 S.W. 4&0; Germo Mfg. Co. v. Coleman
County, Tex.Civ.App., 184 S.W. 1063; Matthews
Lumber Co. v. Van Zandt County, Tex.Clv.App., 77
S.W. 960; Fayette County v. Krause et al., 31 Tex.
Civ.App. 569, 73 S.W. 51. Where a right is conferred
or obligation imposed on said court, it has Implied
-1341"
Hon. Henry Wade, Page 3 (M-277)
authority to exercise a broad discretion to
accomplish the purposes intended. 11 Tex.Jur,
565; City Nat. Hank vi Presidio County, Tex.
Civ.App., 26 S.W. 775; Qussett v. Nueces County,
Tex.Com.App., 235 S.W. 857; Dodeon v. Marshall,
Tex.Civ.App., 118 s.w.w 621.
"3. On the otherhand, a sheriff has.no
authority to make contracts that are binding one
the county, except where he is specially so au-
thorized to do by statute. 11 Tex.Jur. 636;
Germo Mfg. Co. v. Coleman County, Tex.Civ. App.,
184 S.W. 1063; American Disinfecting Co. v.
Freestone County, Tex.Civ.App., 193 S.W. 440;
Sparks v. Kaufman C.ounty,Tex.Clv.App., 194 S.W.
605.
'4. .Revised Statutes, ~Artlcle 2351;impoaes
on the Commissioners' Court the duty to 'Frovide
and keep in repair court houses, ,jailsand all
neceesary public building8. 1 The duty thus im-
DOSed.is not llmlted to the furnlshlna of a bare
building and keeping it in repa&. IE contemplates
an Inhabitable court house; one that is ,usable for
the purposes intended. Thi,swould include the fur-
nishing-of heat, elevator service where neecled,
as well as janitor aervlce.to keep it clean and
usable. Since It Is under the duty of providing
these conveniences, the Commissioners' Court has
at least the Implied power and authority to con-
tract therefor. Dodson v. Marshall. Tex.Civ.Aao.
118 S _W .28 bm We think. therefore. that the"
Commissioners' Court has authority to select, con-
tract with, and ilscharge the above-mentioned dourt
house employees. (Emphasis added.)
While that case dealt primsrlly with the question of
whether the commissioners court or the sheri,ffhad the statutory,
duty and authority to hire and fire the courthouse employees, 'yet
'the court's opinion very clearly holds that there Is the,impLied
power arising from the power granted to the commissioners to contract
for janitor services, etc., to mal.ntalnan Inhabitable courthouse or
In accord, Attorney ffeneralOpinion Numbers O-2444
'I$%$ .i%%Ei5 (1944).
In Attorney General Opinion Number WI-370,(1958),this
office held that a commissioners court has no authority to delegate
-1342-
Hon. Henry Wade, page 4’ (M-277)
the maintenance of a countycourthouse to any Individual or firm.
This opinion fa,iledto discuss or recognize the above’cited case
of the Supreme Court, ‘and it Is ,our oljlnionthat It Is contra to
that case holdlng and should be overruled.
It is our opinion that there is implied authority from
Section 7 of Article 2351, Vernon’s Civil Statutes, to authorlte
a commissioners court to contract with an Independent contractor
,to maintain the courthouse and other public buildings within their
charge.
In addition to Article 2351, your county (Dallas) is also
subject to Article 2351c, Vernon’s Civil Statutes, and thus the
effect of this statute must also be considered In this opinion; the
pertinent provisions of whloh are quoted as followst
“Section 1. In all Counties having a pop-
ulation of more than five hundred thousand (500,
000), according to the last preceding or any
future Federal Census, a11 employees necessary to
the repair, maintenance, and operation of all court
houses and Criminal Court Buildings shall be uyder
;;trtirection and control of the Commlssloners,
. . . .A11 ‘employees, Including jail guards,
matrons,’elevator operators and other such em-
ployees engaged In the operation of the jails in
such counties shall continue co be employed and
discharged by the Sheriff ~ln the manner now pro-
vided by law,.and all employees necessary for the
proper conduct of the jails or the safekeeping of
the prisoners shall be subjeat to the exoluslve
direction and control of the Sheriff of such County.
“Sec. 2. The fact that the Court of Civil
Appeals at San Antonio has recently held that all
courthouse maintenance employees are subject to
the exclusive direction and control of the Sheriff
and may be employed and discharged only by the
Sheriff and the further fact that in the larger
Counties having separate Civil Courts and the
Criminal Courts Buildings, such employees have
been employed and discharged by’the Commisb%;oners’
Court.as ‘employee’s
,of t,heCounty.and that the
holding of,the Court of Civil Appeals creates con-
fusion with respect to the repair and maintenance
of public buildings in the larger Counties, and In-
creases the co8.iof operation therein, oreates an
emergency . . .
- 1343 -
Hon. Henry Wade, page 5 ,(M-277)
This statute has an interestinghistory. The Court of
Civil Appeals case referred to in Section 2 is the oase of Anderson
v. Wood, supra, and this statute was enacted while the case was on
appeal to the Texaa Supreme Court. That court apparently did not mention
or consider Article 23510, and it is our opinion that the statute
was not determinativeor controllingof the Issues disposed of by the
court in its opinion. The purpose of this new statute was to provide
the commissionerscourt with an optional way of carrying out its duty
of malntalnlng the public buildings in its charge.
We agree with your analysis of Article 23510, that this
statute is permissive and not in confliot with Artlole 2351, being
cumulative of the pre-exlstlng law authorizing the oommlsslqners
and not the sheriff to employ persons to carry out the courts
assigned functions of providing and repairing the oourthouse and
other public buildings.
SUMMARY ,,,
The CommlaslonersCourt of Dallas County, has
the option to expend county funds in repair, main-
tenance and operation of oourthouse,s,and other.
necessary public buildings, by using its own em-
ployees as prescribed by Artlole 2351c, V.C.S.,
or by using an independentcontractor as implledly
authorized by Article 2351, V.C.S.
Opinion WI?,370is overruled.
Prepared by James C. MoCoy
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
Alfred Walker
Harold Kennedy
Ralph Rash
Nell Wllllams
A. J. CARUBBI, JR.
Executive Assistant
- 1344-