Could a Texas county officer close his office and still pay employees for a day the Governor declared an official day of mourning?

TX AG Opinion GA-0303: Could a county officer close his office for a day of mourning without docking employee pay?

Plain-English summary

A Somervell County attorney asked about a dispute that started with a national moment: after former President Ronald Reagan died, Governor Rick Perry declared Friday, June 11, 2004, an official day of mourning and closed state offices. Somervell County's commissioners court did not order county offices closed, but the Justice of the Peace for Precinct Two closed his own office for the day. When the next pay period came around, the County Auditor charged the JP's clerk a vacation day for June 11.

The opinion concluded the auditor got it backwards. Building on two earlier opinions, JC-0131 (1999) and JC-0239 (2000), the opinion held that an elected county officer, not the commissioners court, controls the hours his own office is open and the working conditions of his own employees, unless the legislature has specifically given the commissioners court that power (which it has done only for certain large or civil-service counties, not Somervell). A county officer can close his office and let employees take the day off for reasons beyond bad weather or repairs, as long as the closure serves a public purpose under the Texas Constitution's ban on gratuitous grants of public money. Whether a given closure serves a public purpose is for the officer to decide in the first instance, subject to judicial review. Because the Somervell County Justice of the Peace had that authority, and improving employee morale can itself be a sufficient public purpose, his decision to close for the day of mourning was valid. Once an employee's salary is set, the opinion continued, the county auditor has only a ministerial duty to pay it; the auditor cannot reduce pay or force the day to be charged against vacation or leave time because the officer, not the auditor, controls that decision.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2005)

County elected officials (justices of the peace, clerks, and similar offices): The opinion confirmed that these officers, not the commissioners court, control their own office hours and their employees' working conditions absent specific statutory authority to the contrary, and that they may close for a day serving a public purpose (including days of mourning) without commissioners court approval.

County auditors: The opinion told auditors that once an employee's salary is set by the commissioners court, the auditor's role in paying it is ministerial. An auditor could not dock pay or reclassify a day as vacation or leave time to second-guess an independent officer's decision to close his office.

Commissioners courts in counties without express hours-setting authority: The opinion reaffirmed that a commissioners court generally lacks power to set the office hours of other independent county officials, except where the legislature has expressly granted that authority (as it had for counties with a population of 355,000 or more, or for civil service counties), neither of which applied to Somervell County.

Common questions

Could a Texas county officer close his office for a day the Governor declared an official day of mourning?
Yes, according to this opinion, as long as the closure served a public purpose. The officer, not the commissioners court, controls his own office hours absent specific statutory authority giving that power to the commissioners court.

Could the county auditor charge that day against the employee's vacation or leave time?
No. The opinion concluded the auditor has only a ministerial duty to pay a county employee's set salary and cannot reduce pay or require the day to be charged to leave time once the responsible officer has decided to close the office for a valid public purpose.

Does a commissioners court control the office hours of other elected county officials?
Generally no. The opinion explained that a commissioners court ordinarily lacks authority to set the office hours of independent county officials and their employees, unless the legislature has expressly authorized it, as it did for counties with a population of 355,000 or more and for civil service counties.

What counts as a "public purpose" that justifies closing a county office and still paying employees?
The opinion did not set a fixed test; it said the officer decides in the first instance whether a closure serves a public purpose, subject to judicial review, and noted that even improving employee morale has been recognized in other opinions as a sufficient public purpose.

Background and statutory framework

Under Local Government Code section 152.011, a commissioners court sets the compensation, benefits, and allowances (including vacation leave, sick leave, and paid holidays) for county officers and employees paid from county funds. But setting compensation and benefits is different from controlling day-to-day office hours and working conditions. The opinion traced a line of prior Attorney General opinions and Texas case law holding that a commissioners court generally lacks authority to interfere with an independent county officer's control over the hours his own office is open or his employees' working conditions, because county commissioners have only the powers expressly conferred by the Texas Constitution or statutes, or necessarily implied from them, and may not interfere with the powers and duties of other independent county officials.

The legislature has, in specific circumstances, given commissioners courts authority over county employees' work hours: Local Government Code section 157.021(a) lets a commissioners court in a county with a population of 355,000 or more adopt uniform work-hour rules for employees whose compensation the court sets or approves, and section 158.035(a) allows adoption of working conditions in civil service counties. Somervell County fell under neither provision, so its commissioners court had no express authority over the working hours of the Justice of the Peace's office.

Attorney General Opinion JC-0131 (1999) had already concluded that a county officer could close his office for reasons like bad weather or repairs, and that employees were still entitled to compensation for the time the office was closed. Attorney General Opinion JC-0239 (2000) extended that reasoning to closures for reasons beyond bad weather and repairs, holding that a county officer's decision to excuse employees is within the officer's own authority, not the commissioners court's, because it is the officer who determines what counts as a legitimate use of an employee's official time. Any such decision to give employees time off still has to serve a public purpose, since Texas Constitution article III, section 52(a) bars the legislature from authorizing a county to grant public money to any individual without one; improving employee morale has been recognized elsewhere as a sufficient public purpose for this kind of expenditure. Whether a specific closure meets that test is decided first by the officer making the call, subject to later judicial review.

On the payment question, the opinion relied on the rule that once an employee's right to a salary is established as a matter of law, the county auditor's duty to approve that payment is ministerial, not discretionary. Applying JC-0131's holding that neither the commissioners court, the county treasurer, nor the county auditor may reduce an officer's or employee's pay or force the time to be charged to leave when an office closure is properly authorized, the opinion concluded the Somervell County Auditor had to pay the Justice of the Peace's clerk her regular salary for June 11, 2004, as a normal workday rather than a vacation day.

Citations

Statutes and constitutional provisions:

• Tex. Gov't Code Ann. § 27.056(a) (Vernon 2004)
• Tex. Loc. Gov't Code Ann. § 152.011 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 157.021(a) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 158.035(a)
• Tex. Const. art. III, § 52(a)

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 27-28 (Tex. 2003)
• Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948)
• Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961)
• Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.-Austin 1997, writ denied)
• Smith v. McCoy, 533 S.W.2d 457, 460 (Tex. Civ. App.-Dallas 1976, writ dism'd)

Other authorities:

• Tex. Gov. Exec. Order No. RP34; 29 Tex. Reg. 5985 (2004)
• Tex. Att'y Gen. Op. No. JC-0131 (1999)
• Tex. Att'y Gen. Op. No. JC-0239 (2000)
• Tex. Att'y Gen. Op. No. JM-910 (1988)
• Tex. Att'y Gen. Op. No. MW-438 (1982)
• Tex. Att'y Gen. LO-96-007
• Tex. Att'y Gen. Op. No. C-350 (1964)
• Tex. Att'y Gen. Op. No. O-6679 (1945)
• Tex. Att'y Gen. LO-96-136
• Tex. Att'y Gen. Op. No. E-0119 (1999)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0303
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0303.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

February 2, 2005

The Honorable Ronald D. Hankins
Somervell County Attorney
Post Office Box 1335
Glen Rose, Texas 76043

Opinion No. GA-0303

Re: Whether an elected county official may close his office on a day declared by the Governor of Texas to be an "official day of mourning" (RQ-0267-GA)

Dear Mr. Hankins:

You ask whether an elected county official may close his office on a day declared by the Governor to be an official day of mourning. If the official closes his office for this purpose, you ask whether the County Auditor may treat the official day of mourning as a vacation day in compensating the official's employees.[1]

After former President Ronald Reagan died, Governor Rick Perry declared in Executive Order RP34 that Friday, June 11, 2004, would be an official day of mourning and that all state offices would be closed to allow state employees to attend ceremonies in honor of President Reagan's memory. See Tex. Gov. Exec. Order No. RP34; 29 Tex. Reg. 5985 (2004). While some counties ordered their offices closed on June 11, 2004, the Commissioners Court of Somervell County did not. See Request Letter, supra note 1, at 1. In Somervell County, however, the Justice of the Peace of Precinct Two closed his office for the day and so informed his clerk. See id. See also TEX. GOV'T CODE ANN. § 27.056(a) (Vernon 2004) (justice of the peace may designate one or more persons to serve as clerks). When the next pay period for county employees arrived, the County Auditor for Somervell County charged the clerk a vacation day for June 11, the day on which the Justice's office was closed.

You ask whether Attorney General Opinion JC-0131 (1999) governs the elected officer's closing of his office in observance of the official day of mourning. Request Letter, supra note 1, at 2. You also ask whether the County Auditor of Somervell County is authorized to determine how the clerk's time is to be charged for the day on which the Justice of the Peace closed his office. Id.

Attorney General Opinion JC-0131 concluded that an elected or appointed county official was authorized to close his office on account of bad weather, repairs, and the like and that employees of the office were entitled to compensation for the time they could not work because of an office closure. See Tex. Att'y Gen. Op. No. JC-0131 (1999) at 2-3. Even more relevant to your question is Attorney General Opinion JC-0239, which considered whether a county officer might close his office for reasons not related to "bad weather, repairs, and the like." Tex. Att'y Gen. Op. No. JC-0239 (2000) at 1. We will review these opinions and the authorities they cite.

A commissioners court has authority with certain exceptions to "set the amount of the compensation, office and travel expenses, and all other allowances for county and precinct officers and employees who are paid wholly from county funds." TEX. LOC. GOV'T CODE ANN. § 152.011 (Vernon 1999). Under section 152.011, the court may confer upon county officers and employees such benefits as longevity pay, vacation leave, sick leave, and paid holidays. See, e.g., Tex. Att'y Gen. Op. Nos. JM-910 (1988) at 4 (vacation and sick leave), MW-438 (1982) at 2 (paid holidays); Tex. Att'y Gen. LO-96-007, at 2 (longevity pay).

However, a commissioners court ordinarily lacks authority to set the office hours of other county officials and their employees. See Tex. Att'y Gen. Op. No. JC-0131 (1999) at 1. See also City of San Antonio v. City of Boerne, 111 S.W.3d 22, 27-28 (Tex. 2003); Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948) (county commissioners have only the powers expressly conferred by the Texas Constitution or statutes or necessarily implied therefrom). The commissioners court may not interfere with the powers or duties of independent county officials and their employees. Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961); Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.-Austin 1997, writ denied). The legislature has expressly authorized the commissioners courts of some counties to establish the work hours of county employees. See TEX. LOC. GOV'T CODE ANN. § 157.021(a) (Vernon 1999) (in county with population of 355,000 or more, a commissioners court is authorized to adopt uniform rules on the hours of work of employees whose compensation is set or approved by the court); id. § 158.035(a) (adoption of working conditions in civil service counties). No such statute applies to the Somervell County Commissioners Court. Absent such express authority, a commissioners court may not interfere with a county official's authority to set the hours that his office will be open or his implied authority to set the working conditions for his employees. See Tex. Att'y Gen. Op. Nos. JC-0239 (2000) at 3, JC-0131 (1999) at 3. See Tex. Att'y Gen. Op. Nos. C-350 (1964) at 1-2 (constitutional county officer may close his office on Saturday without approval of commissioners court); O-6679 (1945) at 2 (commissioners court lacks authority to require county offices to be open 48 hours a week). Attorney General Opinion JC-0239, building on the reasoning of Attorney General Opinion JC-0131, concluded that

a county officer's dismissal of employees for reasons other than bad weather, repairs, and the like is within the officer's authority and not the authority of the commissioners court. [I]t is for the officer to determine what activities constitute a legitimate use of an employee's official time, i.e., work time rather than vacation time.

Tex. Att'y Gen. Op. No. JC-0239 (2000) at 4. See also id. at 5 (authority of commissioners court to condition county employees' compensation on working or accounting for forty hours of work each week). Allowing the employees to take a day off must serve a public purpose within article III, section 52 of the Texas Constitution, which provides that the legislature shall have no power to authorize any county to grant public money to any individual. See TEX. CONST. art. III, § 52(a). See also Tex. Att'y Gen. Op. No. JC-0239 (2000) at 4 (improving employee morale may be a sufficient public purpose for granting time off); Tex. Att'y Gen. LO-96-136, at 1-2 (expenditures to purchase small gifts, plaques, or flowers for funerals, weddings, or retirements of county employees may serve public purpose of increasing employee morale). Whether a particular office closure serves a public purpose must be determined in the first instance by the public official, whose decision is subject to judicial review. See Tex. Att'y Gen. Op. No. E-0119 (1999) at 4.

Attorney General Opinion JC-0239 provides the answer to your question. The Somervell County Justice of the Peace, Precinct Two, has authority to decide to close his office and allow his clerk to take the day off in observance of the official day of mourning. Tex. Att'y Gen. Op. No. JC-0239 (2000) at 4. His decision that closing his office serves a public purpose is subject to judicial review. See id.

You also ask whether the County Auditor of Somervell County is authorized to determine how the clerk's time is to be charged for the day on which the Justice of the Peace closed his office for the official day of mourning. See Request Letter, supra note 1, at 2. Where an employee's right to salary is established as a matter of law, the auditor has a ministerial duty to approve the payment. See Smith v. McCoy, 533 S.W.2d 457, 460 (Tex. Civ. App.-Dallas 1976, writ dism'd); Tex. Att'y Gen. Op. No. JC-0131 (1999) at 4. Once the salaries of county officers and employees are set, the salaries may not be reduced to account for office closures and "neither the commissioners court nor the county treasurer nor the county auditor may reduce the officers or employees' pay or require that the time be charged to leave time." See Tex. Att'y Gen. Op. No. JC-0131 (1999) at 3. Accord Tex. Att'y Gen. Op. No. JC-0239 (2000) at 3. We conclude that the Somervell County Auditor has a ministerial duty to approve payment of the clerk's salary for the official day of mourning as a regular work day and may not charge it to leave time.

SUMMARY

A Somervell County official is authorized to set the hours that his office will be open as well as his employees' working conditions. He may close the office and allow the employees to take the day off, assuming that there is a public purpose for the closing. The Somervell County Justice of the Peace, Precinct Two, was authorized to close his office on June 11, 2004 for the official day of mourning honoring former President Ronald Reagan and to allow his clerk to take the day off. The Somervell County Auditor has a ministerial duty to approve payment of the clerk's salary for the official day of mourning as a regular work day and may not charge it to leave time.

Very truly yours,

BARRY R. McBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Ronald D. Hankins, Somervell County Attorney, to Honorable Greg Abbott, Texas Attorney General (Aug. 25, 2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].