Untitled Texas Attorney General Opinion ( 1943 )

Hon. J. D. Looney opiniori lpo. 04388 1
County Auditor Rar: Bnploym~nt of additionaldeputiesand
Bode County clerks in Bowie'Countywhile regulardeputies
Boston,Texas and clerks are on vacation,
Dear Sir: '.
Your requestfor'opiuionhas been receivedand carefullycon-
sideredby this department.We quote from your requestas follows:
"WhereSteno'sand Deputiestakes a vacationforgoneor
Two Weeks, is the Countyliablefor expensefor extra help
to carry on their work during their absence?"
'Article39G2, Vernon'sAnnotatedTexas Civil Statutes,reads
inpart as follows:
uWheneverany district,county or precinctofficer
shall.require the serricesof deputies,assistantsor
clerks in the performanceof his duties~heshall apply to
t&County Commissioners' Court of his county for author-
ity to appointsuch deputies ; ,ass%stantsor clerks,stat-
ing by sworn applicationthe nmber needed,the position
to be filled and the amnmtto be paid. Said application
shall be accompaniedby a statementshoeingthe probable
receiptsfron fees, cdssioz~ and compensationto be
collectedby said office duringthe fiscalyear and the
probabledisburs~ents which shall includeall salaries
and expensesof said office3and said ccnrt shall make its
order authorisingthe appointmentof such deputies,as-
sistantsand clerksand fix the caapensationto be paid
then withinthe linitationshereinprescribedand deter-
nine the numberto be appointedas in the discretionof
said courtlnaybeproper;providedthat in~no case shall
the Commissioners' Court or anynember thereofattsanpt to
influencethe appoinbnentof any personas deputy,as-
sistantor clerk in any office. Uponthe entry of such
order the officersapplying, for suchassistants,deputies
or clerksshsll be authoriaedto appointtheta;provided
that said compensationshall not exceed the na&mau amount
hereinafterSethout. The compensationwhich may be allowed
to the deputies,assistantsor clerksabove naned for their
servicesshall be a reasonableone, not to exceed the fol-
lowing snlountsr. . .n
Hon. J. D. Looney,page 2 (O-5388)
We quote from Opinionlo. O-l&l of this departmentas followsr
"We are unable to find any statutedealingwith the sub-,
ject of vacationsamong counti officials. The same is true
of deputies,assistantsor other employeesauthorisedto per-
form servicesunder the principalof any public office,with
the etieptionof Ai-title 1583b, Penal Code of Texas,1925,
which providesthat every regularly assigned jailer, jail
guard, or jail matron at any county jail in any city of more
than twenty-fivethousand(25,000)inhabitantsshall be allowed
fifteen (15;) days vacation, in each year with pay, not more
than two (2) members to be on vacationat the sametime.
%xmnissionersCourts are courtsof generaljurisdiction
when actingwithin the sphere of the powers and duties confer-
red upon thmu, however,they are courts of limitedjurisdiction
in that their authorityextendsorilyto matterspertainingto
the generalwelfare of their respectivecountiesand that their
powers are only those expresslyor impliedlyconferredupon
them by law -- that is, by the Constitutionand statutesof the
State. 11 Tex. Jur. para. 37, p. 564.
"The law imposesupon each electiveofficialof a county
certaindutiesconnectedwith his offioewhich he is obligated
to faithfullydischargeand perform. He is responsiblefor cer-
tain acts of his deputies;and in the matter of attendingto
and performingthe duties of his office,the law holds him re-
sponsible. Kany dutiesconnectedwith a public officemust
necessarilybe performedby olericalworkers and assistants,
who consequently perform their duties solelyunder the direction
of the principalin office. Especiallyis this true where their
dutiesare not regulatedby statute.
"The status of the various deputies,assistantsor clerks,
as providedin the above-quotedstatute,are varied. ,Sheriff
deputies,constabledeputiesand all county clerk deputiesare
consideredpublic officers. In a true sense, they performgov-
ernmentalfunctions,and where their duties are not prescribed
or regulatedby statute,they performa public service,sharing
the~responsibility of officewith theirprincipal. Such offi-
cers stand on a footingdifferentfrom mere countyemployees--
the servicesand employmentof the formerbeing authorizedby
law, the latterbeing based upon contractwith the conmissioners
COUI”L
"An examinationof the acts of the variouslegislaturesfor
severalyears past disclosesthat the generalappropriation bill
provisions,as affectingState mriployees,permit twelve (12)
working day vacations,when agreed to betweenthe officialand
Hon. J. D. Looney,page 3 (O-5388)
his enrployees.If it can be said that the State has
adopted~apolicy of allowingpaid,vacations, a law which
requiresa public officerto serve a year beforebeing
allowedsuch vacationwould, in our opinion,contravene
such declaredpolicy, deprivingthe governmentoftbetter
and more efficientservice,which is the only principle
upon which such vacationscan be sustained.
"Such matters of generaloffice routineor mode in
which a public officer,with the help.ofhis authorized
deputies,assistantsand clerks,performsthe duties'of
his office,where not regulatedby statute,are not vested
in the ccezmissionerscourt. We cannothelp but view the
matter of regulationof hours ,andvacationsof public offi-
cers in all governmentaland politicalunits of the govem-
ment as being solely-oneof executive,adninistrative~dis-
cretion,~subjedt to be withdrawnorcontrolledby the Leg-
islature.
"Vacationsare closelyidentifiedwith generaladnin-
istrativepowers vested in the holder of a public office.
The only principleupon which vacationsare permitted,inso-
far as a declaredpolicy of the governmentwould authorize
same, appearsgroundedon a settledpolicy of employeesor
public officersenteringinto an agreementwith their depart-
mental or.officehead, under the latter'ssupervisionand
direction.
"As vacationsdirectlyaffectthe dischargingof the
dutiesof a particularoffice,the responsibility for which
reposesin the principalof such office,the Commissioners
Court, being nowise chargedwith such responsibility,
would
not be authorized,in the absenceof legislativeauthority,
to assume controland attemptto regulatethe same.
"It is, therefore,the opinionof this departmentthat
the commissionerscourt of a countydoes not have the au-
thorityto pass an order providingthat no vacationswith pay
shall be allowedany mnployeesof the county or deputiesor
assis'tantsof county officersuntil and unless such persons
have been mnployedfor a period of one year. Such order,be-
ing beyond the scope of power and authorityvested in the
CoznzissionersCourt, is ultra vires and void."
We quote from OpinionNo. O-1876 of this departmentas follrms:
"You are respectfullyadvisedthat it is the opinionof
this departmentthat the county clerk has the authorityto
pay a deputyhis regularsalary during the absenceof'such
deputyfrom eaploymentdue to sicknessor vacationfor a rea-
sonablelength of time."
Hon. J. D. Looney,page 4 (O-5388)
We encloseherewithcopies of OpinionsNos. O-l&l and O-1876.
OpinionNo. 04620 of this ~p@$wpt holds that the countyattorney
of Walker County,Texas,has no authorityto eplploya stenographerand pay
her a salaryas an authorizedexpenseout of his fees of office. This opinion
definesthe term "stenographer.*'
OpinionNo. O-1874 of this department,
holds that when the countyattor-
ney of LibertyCounty,Texas, ccmplieswith Article 3902, V.A.C.S.,a l'clerkn
maybe appointedfor such county attorney.
OpinionNo. O-1930 of this departmentholds that neitherthe county
attorneynor the commissioners' court has any statutoryauthorityto employa
stenographerfor the countyattorneyof Johnson County,Texas, and pay for same
out of countyfunds. This opinionfurtherholds that the commissioners' court
of~JohnsonCounty,Texas, a salary county,having a populationin excessof
20,000 inhabitantsaccordingto the last precedingFederalCensus,may author-
ize the employmentof a stenographerby the county judge and pay for such serv-
ices out of the generalfund of the~countyto an amount not to exceedTwelve
HundredDollars ($1200.00)per year.
OpinionNo. O-4776 of this departmentholds that the commissioners'
court of sectorCounty,Texas, a fee county,having a populationof less than
20,000 inhabitantsaccordingto the last precedingFederalCensus,could not
employa stenographerfor the county judge or the conmissionerscourt, This
opinionholds howeverthat the ccmmissi~ners~ court of Ector County could au-
thorizethe county judge of such countyto appointa clerk.
We encloseherewithcopies of OpinionsNos. o-1620,O-187& O-1930
and O-4776.
Subdivision(a) of Section13 of Article3912e, Vernon'sAnnotated
Texas Civil Statutes,applicableto countieshaving a populationof 20,000in-
habitantsor.moreand less than 190,000inhabitants,accordingto the last pre-
cedingFederalCensus,is applicableto Bowie County,Texas, a countywithin
the above populationbrackets,and said subdivisionreads as follows:
"The ccmmissionerslcourt may authorizethe employmentof
a stenographerby the countyjudge and pay for such servicesout
of the generalfund of the county to an amount not to exceed
Twelve Hundred ($1200.00)Dollarsper year."
It is our opinionthat the only stenographerauthorizedby law for
any Bowie County officialis the stenographerfor the county judge described
in the next above quoted subdivision,No stenographercould be.employedby any
county officialof Bowie County exceptfor the county judge. The sum of
$1200.00per annum is the limit which could be paid to the Bowie CountyJudge's
stenographer.It is also discretionary with the ccaunissioners'
court of Bowie
County as to whetherthey will authorizethe county judge to employ such steno-
graph-.
Hon. J. D. Looney,page 5 (O-5388)
It is our opinionthat it is discretionary with the commissioners'
court as to whether it will authorizethe employmentof extra or additional
deputies,assistantsand clerksfor the various countyofficialsduring the
time the regulardeputies,assistantsand clerksmay be on vacations. In
the absenceof authorizationof the canmissioners court as outlinedby Arti-
cle~3902,V.A.C.S.,supra, such extra help could not be paid for from the
Officers'Salary Fund of the county. On the other hand if properlyauthor-
ized by the conanissioners~court under Article 3902, V.A.C.S.,supra, such
additionaldeputies,clerksand assistantswould be entitledto be paid from
the Officers'Salary Fund of your county.
Very truly yours,
ATTOEEEYGENE&U,OF TEEAS
By /s/ Wm. J. Fanning
Wm. J, Fanning,Assistant
@PROVEDJUN 24, 19b3
/s/ Grover Sellers
FIBSTASSISTANTATTOBliEYGEEERAL
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Enclosures