Untitled Texas Attorney General Opinion ( 1947 )

r I ,R-150 PRICE DANIEL ATTORNEY GENERAL Mmob 28, 1947 Bon. Jep 8. yullsr Opfnloll NO, v-110 County Attormky Jefferson County Re: Right of County’co8ml8Y BeaumontD lWXa6 slonrra D Court to re- co&m a union ae ool- leotive bakgainiw agent . ior county employeea and to enter into a oollect- ive bargaining agreement I with said agenoy. ‘~ Dear Sir: You ask us to a&vise whether the Commissionerse court or ~Jrrr6rroh County may enter ‘a dollsotive bar- gaiunfng agreement with an awooiation or’ union and re- cognize it a6 the oolleotire bargaining agent for oounty employees 0 YAttaohed to your request is a oopy or”an agreement bdtwaen the County CommissIonsraP Court of your ooonty with Looal No,, 997 of the Ameriaan yedera- tion of State, County,, and WnicfRal Employees. This contract provide8 for the Union as the bargaining agent ror all oounty dmployees; for an 8 hour working day and a I+0 ho.ur work Week, *All houra worked in exaena of A0 houra are to be added to the employee*6 iaoationor the employee to take euah time off at any time; that silita the convenienoe of the department of his employment.” ” It also, provides ror eiok leaVea, ta6ations and obser- vance of designated legal holidaya. The’oontraot is for a term of one year and “shall autmnatioally remain in full force and effect from year to year, unless a written notioe is given, thirty days prior to erpfra- tion of the year that said contraot ia in foroe, by either party upon the other, of their intention to ter- minate said contract or until a new agreement la mutually agreed to by the parties herein,* The substantial queetion is of the legalit of the contract; of the authority of the County Cc!wullf*- sionersn Court to make such a contraot, It ia axiomatio that in a governmsnt ih whioh tho dutie8 of all orficere, as yell as their ponerr, are Han, Jep S, Fuller - Page 2 V-110 defined by written law, no power should be exerciesd unless authorized by law, It is important Co beer in mind that the CommissionersO Court &es not have the same freedom of action whioh private bmployers enjoy. Their authority is confided to them by lawg an8 by that law it is limited, That authority may not YI $rlogated or surrendered to others sinoe it 16 a publio trrist 00 be disoharged by publio OffiOialS a8 mided by ZWDla In the case of t %19071, 90 TeXe 606, 4 ?fourt of Texas said: *It is not true 0 0 e t,hat the @on- sti tution confers upon the CommiB*foner`` Court any general authority over the ooun= ‘tyDs business, but merely gives them nuah speoial powers and jurisdiotion over all county business as is conferred by the con* stitution itself and the laws ot the State, or as might be thereafter preacribr)llo We had occasion to consider thi$ ques%li?a in the case or Bland v. Orr (Tex, Bup,) B9 S, VB, 558, and reached the conclusion that such courts could exercise only so@& ow%r8 as the constitution itself or PM 1% ! #la- ture had specifically conferred uwb Umn,* The Supreme Court of Texas reiterated the above fo~;~i;oChildress County v, State (1936) 92 So WO (2d) 0 16, saying: “The authority of the CommisBiOnersO Court of Childreea County to Bike OOP- traote in its behalf is striotly 1iaSW to that oonferred, either expWs#ly or by fair or necessary implicatfon, by the em- stitution and laws of this State** Nor oan the Commissioners0 Court 11&&t it8 Srsew dam OS contract with its employees aa to the wobdit$oLM or stipulatfone of employmentD Thus County oSfio@T~ who are authorized by law to contraot for the buildfaa; et a oourthouae aannot delegate such sullhorfty to a pe&mtO indivfduab~ The ComissfonersB Court bould not dsleeate to an architeot their authority to make a contraat % construct a courthouse, Russell v. Gage (3886), 66 .%X0 428, 1 S. W, 270, Bon* Jop 8. Puller ~0 Page 3 V-ll0 lleo C, &'1919) T 208 8. ‘99, 2 3# or Cc%lalas&-oneTaQ co held that tEo r the om8traetioa of a eowthouse oannot make the oontSaotor glr agent with authority to ptroel out the oontrao8 M others and themby telease the oontraotors trOm all lW%lty, Suoh aotion was void bWaur@ it delegated to others tho court @I powera ot passlng QD the omtraot. . And the dupreme Court in County: (1888) 71 Tex, 99, 8 a0 W, 6 oounty oom&~eioners~ oourt nwt them&olver ssleot auoh agents aa may be neoessary to assist thun in tk die- charge of their fuuotions when suoh agents smro~ae jud$ment and discretion in pWfomna8 or tbs worlc as- signed to thm; t&e duty of aaktsg the arleettoas should not be delegated; and a ~artaDl to tEu uMrary would br unree+#onable and not bindln$. Ita r&z&dno authority &I C&e Uu for a Oormdr- sioniro” Court to enter a eolleotiYe bargaining oontract or it8 &e&al dutlea to aa aWeelation r8snkiw who ahaU ba sQ&oye&, and provtlirrs ngul;atirrg suoh am- p1oymut. “Xn this oonneot&bn we lo 8ot de1 it inappropriate to quote the Iota dent Roosevelt, am no o&e ban tH&tb my he was fi any #en86 inialaal In a letter to thr Ratloolrl rbaezu ~Q``WHI, adoa Wwt i(lp Hon. Jep 9. Fuller - Page 4 V-110 the late president is quoted as saying: OAll government employees should re- alive that the prooess of oolleotive bar- gaining, as usually understood, oannot be transplanted into the public servioe. It has its distinct and insurmountable liti- tations when applied to publio personnel managementO The very nature and purpose or government make it impossible for adminls- trative ofiieials to represent fully or to bind the employer in mutual disoussions with government employee organizations e The em- ployer is the whole people, who speak by meana of laws enacted by their representa- tives in Congress. Accordingly, adminls- trative employers and ofriolala alike are governed and gutded, and in m,n instanoes restricted, by laws which estab E:ish poll- oies 9 prooedur61, or rules in personnel matters. sm ,WhiLe the GeaWmaioneras Wart has the right of aad disehaq!&g some ereployees, preillme cowt Si,Teza8, 1941s 152 8,. ot by direat%- or iBdiraQtieB in- fringe upon an elected county officer*s right and duty of selecting assistants of his choice., (San Antonio Court of Civil Appeals, w. (2d) 636, 646, Artiale 3902. Revised givil Qbatutel. I 1925. -. as amended, provides that H - numbor needed, the position to be filled a$ the amount to be paid, Said tpplio at~ien shall be aecempanfed by-statomnts SheWi~ t&m prob- able reoeipte rrom fe,es, oom~&&enr amd oofnp peneation to be collected by said effiee during the risoal year and the probable dibbureeliatr b..; whioh mhall inolude all aalariee and expense0 of,said 0friee; ash. mid QQWW~ ab&U 8g&J& . ., Bon e Jep 9. Fuller - Page 5 V-110 ’ (Undersooriag , .’ Like priwirfonr ar+a r0uad in the 0th or a trtutss dealing with the appolntnent and salaries o? county emplg- eeso Though the Comml~elonors.~ Court vaa, 081~aa au- thorized by law, limit the salaries and nu&er of county ’ empI@yees, thep have no power @?er, the naaing or the lndi- viduals o do w* (24) 537. Ths Court werrlho4 bv law. “‘ph. Commlesloarti * llmlteti Ju~l``6tler1, inh~ . Then atatutoEy authority is given ?or the axWolse ef cor- taia pawek and the per?ormutee of oorta5.n duties, those requlroments aust be striaPZg ?dlloweU. D D* The alg authority under rhioh a Wnni.asionara~ Couxt oould assist in the appeintmrtlt Of the doputlea named in Artiole 3902 is the authority oanierrel thorola, 6A& oould be exeouted only In the manaar presorlbod la the statute, Johna”@noa, (San Antonio C, A, 1932), 52 So II, (2 . 23118 department la b)inhan Elo. O-2633, approved Septembrr 9, 19 reached a like oono~urlen-- helding that the Lowor. r sfondo Biver Autbwrrlt,y la&M the author- ity to enter ipto a pxopoeo~ oolleetive kx@ni tkgree- ment with a labor unloo. A oapy of that oplnloa “f I att8ohed hereto. In view or w&t has bran paid lb c woit,1s thr settled rule of law in this Utate that the 'Coamln4l$msrrr' Court oannot by direotion or indireotion ln?rin@‘upon an orfioer~s right and duty o? seleoting raBlatant8 o? his, oholce. The reaponslble head or an orfioo oanabt be re- . Hono Jep 8, ?ullrr - Paga 6 V-U.0 lieved from the general duty of the supeniaion and control or his office in a reasonably sffioient man- ner by placing restrictions ar to whom he shall ap- point nor aa to the conduct o? his O??iOoe !?sithor can the Ccn@s616#2ere* @our& 4nt4r into a eolb4ti+4 bargaining a&rOmOd aId ?44ogniz4 The Jorrrrson mmby mmml~iaram~ Qourt ir not authorized to roea#4##@ a p~ion or arrwiation es a 00~14otl4U ‘k* gaining agent statutes Bo not Courtos authorllty as to the aoadibl~ 6f oznployment, working hour*, vaMt401, and other matters relating to such omplO~nto RespooUull~r yours, A’M’ORNBY (IEHwEaAL OF ‘l’l+B ---++-t BY . . David Wuntoh AMietant