Untitled Texas Attorney General Opinion ( 1988 )

JIM MA- August 26, 1988
ATMRNEY GENERAL
Honorable Tim Curry Opinion No. 8X-947
Criminal District Attorney
Tarrant County Re: Whether a commissioners
200 West Belknap Street court may require perfo,rm-
Fort Worth, Texas 76196 ante evaluations of assist-
ant district attorneys not
covered by civil service,
and related questions
(RQ-1198)
Dear Mr. Curry:
You ask whether the Tarrant County Commissioners Court
"may require performance evaluations" whereby salaries of
assistant district attorneys, secretaries, investigators,
and other personnel in the District Attorney's office, are
"set," none of the referenced positions being covered by a
civil service program.
Commissioners Court of Caldwell Countv v. Criminal
District Attornev. Caldwell Countv, 690 S.W.2d 932 (Tex.
APP. - Austin 1985, writ ref'd n.r.e.) considered the
application of former article 689a-11, V.T.C.S., Acts 1931,
42d Leg., ch. 206, 512, at 339 as amended (now repealed and
codified as sections 111.001-111.007 of the Local Government
Code), and former article 332a, Acts 1973, 63d Leg., ch.
127, 5 5, at 275 (now repealed and codified as section
41.106(a) of the Government Code) to the issue of whether
the commissioners court, while carrying out its budgetary
procedures pursuant to article 689a-11, could change the
amounts of salaries of personnel in the District Attorney's
office where those employees' salaries had been set by the
District Attorney pursuant to article 332a, SeCtiOn 5.
Article 332a, section 5 then provided as follows:
Salaries of assistant prosecuting
attorneys, investigators, secretaries and
other office personnel shall be fixed by the
prosecuting attorney, subject to the approval
of the commissioners court. . . .
p. 4777
Honorable Tim Curry - Page 2 ml-947)
Article 689a-11 provided, in pertinent part:
At the conclusion of the hearing, the
budget as prepared by the County Judge shall
be acted upon by the Commissioners~ court.
The Court shall have authority to make such
changes in the budget as in their judgment
the law warrants and the interest of the
taxpayers demand [sic]. When the budget has
been finally gpDroved by the Commissioners'
Court, the budget, as anvroved by the Court
shall be filed with the Clerk of the County
Court, and taxes levied only in accordance
therewith, and no expenditure of the funds of
the county shall thereafter be made except in
strict compliance with the budget as adonted
by the Court. (Emphasis added.)
The District Attorney had argued, the court said, that
by enactment of article 332a the Legislature
intended to withdraw from the counties'
budget-making process, and the attendant
vicissitudes of political controversy, the
amounts necessary to pay the salaries of the
prosecuting attorney's employees, which
amounts should instead be 'fixed' by the
prosecuting attorney, to be changed by the
Commissioners Court only to the extent the
amounts 'fixed' by him are unreasonable or
unnecessary.
690 S.W.2d at 935.
The court reasoned:
Under the prosecuting attorney's interpre-
tation, his unilateral determination of his
employees' salaries is not realistically
subject to the public debate, the political-
adjustment process, the public-interest
evaluation, the taxpayer-interest considera-
tion, and the mandatory correlation of county
revenue and expenditure estimates which
comprise the legislative process contemplated
by art. 689a-11. Of what use are public
hearings, public debate, and so forth if the
amounts 'fixed' by the prosecuting attorney
are not open to change by the only body
authorized to raise the revenue to pay them
p. 4778
Honorable Tim Curry - Page 3 (JM-947)
and make the other legislative determinations
referred to above? If they are not open to
change, there is no practical reason for them
to be discussed or subjected to the political
and legislative process. They are outside
such process and the result of dictation by a
single officer of the executive branch -- an
anomaly in any governmental budget-making
process.
Id. at 938.
The court then reconciled the apparent conflict between
the provisions of article 332a, section 5 and article
689a-11, holding as follows: _
[T]he Legislature intended by the two
statutes in question that the ordinary
budget-making process of art. 689a-11 be
followed in reference to the salaries of the
prosecuting attorney's employees, except that
he, and not the County Judge, shall specify
the amounts to be included in the proposed
budget submitted to the Commissioners Court,
that Court having the power to change those
salaries, as in the case of ordinary county
employees, before approving and filing the
budget with the Clerk of the County Court.
& at 939.
To the extent to which they are inconsistent with the
holding of Commissioners Court of Caldwell Countv, we are of
the opinion that the following attorney general opinions on
which you rely in your brief are now overruled: H-908
f-761, indicating that the commissioners court has
authority only to approve or disapprove the salaries set by
the District Attorney for personnel in his office; H-922
(1977), holding similarly that the commissioners court may
not set, but only approve or disapprove, the salary of the
prosecuting attorney's secretary as set by the prosecuting
attorney: and H-1113 (1978), ruling that the salaries of the
prosecuting attorneyIs personnel are not subject to the
general authority of the commissioners court to raise the
salaries for personnel in the departments of elected county
officials.
your request calls into question the construction of
two current statutes which are virtually identical to the
statutes treated in Commissioners Court of Caldwell County:
p. 4779
Honorable Tim Curry - Page 4 (JW-947)
Section 41.106(a) of the Government Code, which is a
codification without any substantive change of article 332a,
section 5, suvra, and the provisions of subchapter B,
chapter 111 of the Local Government Code, the counterpart
provisions to the provisions of subchapter A of chapter 111
for counties with a popul'ation of over 225,000. The
provisions of subchapter A are derived from former article
689a-11; they now apply only to counties of less than
225,000 population. (See the Revisor's Note to section
111.001 in the Revisor's Report in the proposed Local
Government Code, Texas Legislative Council, February 1987.)
It is our opinion that the holding with respect to the
purpose and effect of article 689a-11 in Commissioners Court
of Caldwell County -applies to our construction of the
provisions of chapter 111, subchapter B of the Local
Government Code, the general provisions for the budgetary
process which are applicable to Tarrant County.
It is clear, therefore, under the holding of
Commissioners Court of Caldwell Countv that while the
Tarrant County District Attorney may wfi;ll the salaries of
his office personnel, the commissioners court may not only
approve or disapprove such salary figures but may also raise
or lower the salar~ies "fixed" by the District Attorney in
arriving at its budget.
In considering the issue you present -- i.e. whether
the county commissioners may Veguire" performance evalua-
tions "whereby salaries are set" for personnel in the
District Attorney's office, the following guidelines are to
be applied.
Nothing in Commissioners Court of Caldwell Countv
in other law, cases, or opinions of this office, gue&ioiE
the authority of the District Attorney to formulate the
salary proposals according to such criteria as he, within
his sole discretion, adopts. The commissioners may not
therefore require that the District Attorney base salary
proposals on the results of the performance evaluations.
On the other hand, since the commissioners may approve,
disapprove, modify, or effectively disregard the salary
proposals made by the District Attorney, we are of the
opinion that the commissioners may use the performance
evaluations in determining the salary figures which they
will actually adopt in their budget.
We believe that the commissioners' authority to make
the final budgetary determinations regarding salaries
p. 4780
Honorable Tim Curry - Page 5 (JR-947)
necessarily includes the authority to obtain data from the
District Attorney's office on which to base such determin-
ations. We would note that, according to the information
you supplied, the performance evaluations in question are to
be administered by personnel *within the District Attorney's
office and that their administration will involve only &
minimis intrusion by the commissioners into the day to day
operations of the District Attorney's office. We would
further note that our ruling here is of course limited to
this particular factual situation which you presented in
your request.
A consideration of various provisions of the Local
Government Code indicates that our conclusion is consistent
with the overall statutory scheme for the operations of
county government. Sections 111.005 and 111.036 -- the
former applicable to counties of 225,000 population or less
and the latter to larger counties -- provide that the county
budget officer, the county judge in section 111.005, and the
county auditor in section 111.036, may require county
officers to furnish information necessary for the budget
officer's budget preparation. Moreover, other sections of
the Local Government Code show that the commissioners are
not precluded, in other contexts,. from regulating work
conditions of or obtaining data on the activities of
personnel in county offices. Section 157.021, derived from
former V.T.C.S. articles 2M2h, 3912e-4a, and 3912e-4b,
provides that a commissioners court in a county "with a
population of 355,000 or more . . . may adopt and enforce
uniform rules on the hours of work of department heads,
assistants, deputies, and other employees whose compensation
is set or aovroved by the court." [Emphasis added].
Section 270.006 provides that an officer or employee of the
county must provide the commissioners court with information
on the use of equipment in the charge of the employee or
officer.
Sections 151.001-151.004, derived from former articles
3902, 3912e, 3912e-13, regulate only the commissioners'
power over appointments made by county officers and not the
commissioners' power over staff members already employed in
the county. We conclude that those sections have no
applicability to the issue you present.
We concede that Renfro v. Shronshire 566 S.W.2d 688
(Tex. Civ. App. - Eastland, 1978, writ ref'd n.r.e.),
decided seven years before the Caldwell County case, may
suggest a different result from the one we reach. The court
there held that the commissioners have no right to screen
applicants or to veto appointments to positions at various
p. 4791
Honorable Tim Curry - Page 6 (J&947)
salary steps made by the county clerk. The court
considered, in addition, the commissioners' authority to
require that county officials supply a form showing the
ethnicity and gender of all employees and indicating any
equal opportunity hiring and promoting efforts that should
be attempted where the work force is found to be over-
representative of any one ethnicity or gender. The court
did not reach the latter issue, finding that there was no
justiciable controversy presented.. In our opinion, the
holding in Renfro with respect to the commissioners'
authority over appointments is not determinative of the
issue you present, which relates to the commissioners'
authority over personnel already in county employment. As
the court did not reach the issue regarding the gender/
ethnicity form, we must regard any indications as to the
commissioners' lack of authority as mere dicta.
Therefore, in our opinion, the commissioners may
require performance evaluations for the purpose of making
their final budgetary determinations as to the salaries of
the District Attorney's employees, which determinations are
solely within the commissioners* prerogative (so long as
they consider them "warranted by the facts and law and
required by the interest of ,the taxpayers," and so long as
the total amount budgeted -in a fiscal year does not exceed
the balances in county funds as of the first day of the
fiscal year, plus the anticipated revenue for the fiscal
year as estimated by the county auditor. Local Gov't Code,
9 111.039(b)).
SUMMARY
In arriving at the salary figures to be
included in the county budget for personnel
of the District Attorney's office, the
commissioners court of Tarrant County may
approve, disapprove or modify the salary
figures proposed by the District Attorney.
The commissioners court may require perform-
ance evaluations whereby salaries of per-
sonnel in the District Attorney's office are
set for budgetary purposes by the commis-
sioners court. The commissioners court may
not require that the fixing of salaries of
such personnel by the District Attorney, for
purposes of proposing such salary figures to
the commissioners court, be based on such
performance evaluations.
p. 4782
,
Honorable Tim Curry - Page 7 (JM-947)
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Very truly yo ,
A&
JIM MATTOX
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
LOU MCCREmY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLRY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 4783