Untitled Texas Attorney General Opinion ( 1974 )

THFIATTORNEY GENERAL
OF TE=xAL3
Ausrrm. Tram 7SWll
September 17. 1974
The Honorable Vernard G. Solomon Opinion No. H- 402
Criminal District Attorney
Harrison County Re: County Auditor’s authority
P. 0. Box 776 to approve back pay to suspended
Marshall, Texas 75670 but reinstated county employee.
Dear Mr. Solomon:
You ask whether the county commissioners court is authorized
to approve back pay for a county employee who was suspended and later
reinstated.
An employee of your county was indicted for two felony offenses.
The county official in charge suspended him without pay but at the same
time requested the county commissioners court to award him back pay
for the time of his suspension if he were later exonerated. The com-
missioners court took no action on the request. The indictment was sub-
sequently dismissed. and the employee was reinstated. The commissioners
court asked the county auditor to approve the back pay request, and he
requested a formal opinion on the question from this office.
The county auditor has the authority to approve for payment any
county obligations which the commissioners court has the authority to
incur. Article V, Section 18. Texas Constitution; Articles 1660, 1661,
2351. V. T. C. S. The answer to your question, then, depends upon whether
the commissioners court has the authority to pay a reinstated county
employee back pay for time during which he was suspended as a result
of criminal charges.
Article V. Section 18 of the Texas Constitution creates the county
commissioners court and delimits its authority:
c
p. 1877
The Honorable Vernard Solomon page 2 (H-402)
. . . 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.
The term “county business ” has been given a broad and liberal construc-
tion by the courts so as not to defeat the real purpose that was intended
to be accomplished by creation of the county commissioners courts.
Rodgers v. County of Taylor, 368 S.W.2d 794 (Tex. Civ. App. --East-
land 1963, writ ref. IL r. e. ). One aspect of “county business” is the
employment of personnel. In asserting its “implied authority to do what
may be necessary in the exercise of the duties or powers expressly
conferred on it” there is no doubt that a county commissioners court can
employ and contract personnel as county employees to carry out its
responsibilities and duties. Anders0n.v. Wood, 152 S.W.2d 1084
(Tex. 1941); 15 Tex. Jur. 2d, Counties Section 37.
If, then, a county commissioners court has authority to hire
employees, by implication it has the authority to set the terms of
their employment. One such term which may be possible is that if
an employee is indicted he will be suspended with the understanding
that he will be reinstated with back pay if he is subsequently exonerated.
A policy of this kind would be a condition of employment no different
than the rate of compensation or amount of vacation an employee is to
receive.
But in the situation you have described, no such policy regarding
indicted employees was ever adopted by the commissioners court.
Instead, it is seeking to award back pay after the indicted employee has
already been exonerated and reinstated. In these circumstances it is
our opinion that a retroactive grant of back pay would be unconstitutional.
In Attorney General Opinion H-51 (1973), we decided that providing an
employee with compensation not “previously earned by the employee”
would constitute a gift or grant of public moneys in direct violation of
p. 1878
The Honorable Vernard Solomon page 3 (H-402.)
r
Section 53 of Article III of the Texas Constitution. To award back pay
to a reinstated.employee in the situation you describe when he is not
entitled to it under the terms of his employment would raise similar
constitutional problems. Thus, the county commissioners court is
not authorized retroactively to grant back pay to a reinstated county
employee who was temporarily suspended as a result of criminal
charges, and the county auditor has no authority in this type case to
approve for payment any such grant.
SUMMARY
Absent a policy granting such right as a
part of the terms of employment, the county
commissioners court is not authorized retro-
actively to provide for the payment of back pay
to reinstated employees who were temporarily
suspended as a result of criminal indictment.
Very truly yours,
Attorney General of Texas
APP V D:
q!i)f``g~
DAVID M. KENDALL. Chairman
Opinion Committee
p. 1.879