Untitled Texas Attorney General Opinion ( 1968 )


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  •                             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-
    

Document Info

Docket Number: M-277

Judges: Crawford Martin

Filed Date: 7/2/1968

Precedential Status: Precedential

Modified Date: 2/18/2017