Can a Texas county official suspend an employee with pay?

TX AG Opinion GA-0322: Can a Texas county official suspend an employee with pay?

Plain-English summary

A Brooks County deputy in the tax assessor-collector's office was indicted on a felony charge, and the elected officer who ran that office (the county sheriff, who in a small county also serves as tax assessor-collector) suspended the deputy "with pay until further notice." The office had no written personnel policy providing for paid suspensions. The commissioners court worried that an open-ended paid suspension looked like a paid vacation it should control, and the county attorney asked the Attorney General who actually had the say: the commissioners court or the elected officer.

The Attorney General split the question into two parts. On the first part, who decides, the opinion sided with the elected officer. A commissioners court sets county employees' salaries under Local Government Code section 152.011 when it adopts the annual budget, but once it has handed an officer that salary as a resource, it cannot micro-manage how the officer uses it during the budget year. Each elected county officer has a constitutional and statutory "sphere of authority" over the office, including personnel decisions, that the commissioners court may not invade. So the power to suspend a deputy, and to keep paying the deputy during the suspension, rested with the sheriff, not the commissioners court.

On the second part, the opinion said that discretion is not unlimited; the Texas Constitution bounds it. Article III, Section 52(a) bars gifts of public money, so a paid suspension must serve a legitimate public purpose, a judgment the officer makes subject to court review, with enough controls to make sure that purpose is carried out. More decisively, Article III, Section 53 forbids "extra compensation," meaning pay outside the bargained-for terms of employment. Paying someone who is not working is generally outside those terms, so a paid suspension counts as extra compensation, and is unconstitutional, unless the office had already adopted a paid-suspension policy as a standing term of employment before the suspension. Because the sheriff had no such preexisting policy, the opinion concluded a county official does not have authority to suspend an employee with pay unless the officer previously adopted a policy allowing it. The opinion noted it does not find facts, so whether a policy actually existed, and whether any improper payment should be recovered, were left to the county.

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)

Elected county officers (sheriffs, tax assessor-collectors, and others): The opinion held that the power to suspend an employee and to continue paying that employee during the suspension fell within the officer's own sphere of authority, not the commissioners court's. But the same officer could lawfully pay a suspended employee only if the office had a preexisting paid-suspension policy; without one, the payment was unconstitutional extra compensation.

Commissioners courts: The opinion described the commissioners court's role as setting salaries through the budget, and concluded it could not interfere with an officer's use of that salary during the year or decide for the officer whether to suspend an employee with pay. The court's leverage over other officers ran through the budget, not through day-to-day personnel control.

County employees and deputies: The opinion meant a county employee placed on paid suspension had no assured right to that pay unless a paid-suspension policy already existed as a term of employment. If the payment was improper extra compensation, the county had discretion (but no duty) to seek reimbursement.

Common questions

Who decides whether to suspend a county employee, the commissioners court or the elected officer?
The opinion concluded the elected county officer who runs the office has that discretion, because personnel decisions fall within the officer's sphere of authority, and the commissioners court's role is to set salaries through the budget, not to manage the office.

Can a Texas county official keep paying an employee during a suspension?
Only if the office had already adopted a paid-suspension policy as a term of employment before the suspension. The opinion concluded that without a preexisting policy, paying a suspended employee is "extra compensation" prohibited by Article III, Section 53 of the Texas Constitution.

Why is paying a suspended employee a constitutional problem?
The opinion explained that salary is paid in exchange for work over a set period. An employee who gets full pay while not working receives something outside the bargained-for terms of employment, which the constitution treats as a prohibited gratuity unless a standing policy made paid suspension part of the deal.

Does the commissioners court's budget power let it stop the payment?
The opinion said no. Once the commissioners court sets the salary in the budget, it cannot interfere with the officer's use of that money during the budget year, and cutting off pay to a suspended employee would effectively let the court fire the deputy, which is not the court's power.

What does Article III, Section 52(a) add?
The opinion required that any paid suspension also serve a legitimate public purpose, determined first by the officer and subject to judicial review, with sufficient controls to ensure that public purpose is carried out.

If a county already paid an improperly suspended employee, must it claw the money back?
The opinion said the county "may exercise reasonable discretion as to whether to seek reimbursement," weighing factors like the amount and cost of collection, but is under no duty to recover the extra compensation.

Background and statutory framework

Two ideas drive the opinion. The first is the elected county officer's "sphere of authority." Texas courts give county officers wide control over the tasks state law assigns them, including choosing and managing personnel (Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961); Comm'rs Court of Shelby County v. Ross, 809 S.W.2d 754 (Tex. App.-Tyler 1991, no writ); Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980)). The commissioners court conducts county business and sets employee compensation under Local Government Code section 152.011, but its influence over other elected officials runs through the budget: it decides what resources to place at an officer's disposal, then may not micro-manage how the officer spends them. The opinion treated the sheriff acting as tax assessor-collector as one office under Article VIII, § 14(b), which makes the sheriff the tax assessor-collector in counties under 10,000 people.

The second idea is the constitutional limit on giving away public money. Article III, Section 52(a) bars grants of public funds, so an expenditure is proper only if it serves a public purpose with adequate controls. Article III, Section 53 separately forbids "extra compensation." The opinion drew on the Texas Supreme Court's definition that extra compensation is pay "outside the contract" (Dallas County v. Lively, 167 S.W. 219 (Tex. 1914)), and on cases holding that benefits provided under prospective terms of employment are not extra compensation (City of Orange v. Chance, 325 S.W.2d 838 (Tex. Civ. App.-Beaumont 1959, no writ); Ward v. City of San Antonio, 560 S.W.2d 163 (Tex. Civ. App.-San Antonio 1977, writ ref'd n.r.e.)). Putting the two together, paid suspension without a preexisting policy is a gratuitous payment for no work, which Section 53 prohibits. The opinion also reminded that it does not resolve fact disputes, so whether a qualifying policy existed was for the county to determine.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. VIII, § 14(b)
• Tex. Const. art. III, §§ 52(a), 53
• Tex. Loc. Gov't Code Ann. §§ 85.003(c), 151.001(a), 152.011, 158.002, 158.032 (Vernon 1999)

Cases:

• Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961)
• Comm'rs Court of Shelby County v. Ross, 809 S.W.2d 754, 756 (Tex. App.-Tyler 1991, no writ)
• Renken v. Harris County, 808 S.W.2d 222, 226 (Tex. App.-Houston [14th Dist.] 1991, no writ)
• Randall County Comm'rs Court v. Sherrod, 854 S.W.2d 914, 921 (Tex. App.-Amarillo 1993, no writ)
• Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)
• Renfro v. Shropshire, 566 S.W.2d 688, 691 (Tex. Civ. App.-Eastland 1978, writ ref'd n.r.e.)
• Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 383 (Tex. 2002)
• City of Orange v. Chance, 325 S.W.2d 838, 840 (Tex. Civ. App.-Beaumont 1959, no writ)
• Dallas County v. Lively, 167 S.W. 219, 220 (Tex. 1914)
• Ward v. City of San Antonio, 560 S.W.2d 163, 166 (Tex. Civ. App.-San Antonio 1977, writ ref'd n.r.e.)

Other authorities:

• Tex. Att'y Gen. Op. Nos. GA-0003 (2002), GA-0037 (2003), GA-0078 (2003), GA-0171 (2004), GA-0254 (2004), GA-0303 (2005), JC-0115 (1999), JC-0119 (1999), JC-0131 (1999), JC-0214 (2000), JC-0239 (2000), JC-0376 (2001), JC-0383 (2001), V-343 (1947), MW-136 (1980), MW-438 (1982), H-797 (1976), H-860 (1976), H-402 (1974), M-1252 (1972), DM-129 (1992), JM-1253 (1990), JM-1160 (1990), C-350 (1964), MW-93 (1979)
• Tex. Att'y Gen. LO-98-099
• Ky. Op. Att'y Gen. OAG 96-3 (1996)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0322
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0322.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

May 6, 2005

The Honorable David T. Garcia
Brooks County Attorney
Post Office Box 557
Falfurrias, Texas 78355

Opinion No. GA-0322

Re: Whether a commissioners court or another elected official may continue to pay compensation to a suspended employee (RQ-0286-GA)

Dear Mr. Garcia:

You ask whether a commissioners court has authority to allow for suspension with pay as an allowance to be used by elected officials.[1] You also inquire "[w]hether an elected official has the authority to suspend an employee of his department with pay without the Commissioner[s] Court of that county previously providing for 'suspension with pay' as an allowance contemplated by Section 152.011 of the Local Government Code."[2]

You inform us that the Brooks County Sheriff also serves as the Tax Assessor-Collector. Request Letter, supra note 1, at 1. See TEX. CONST. art. VIII, § 14(b) ("In any county having a population of less than 10,000 inhabitants . . . the sheriff of the county . . . shall be the assessor-collector of taxes . . . ."); BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, 2000 CENSUS OF POPULATION: Profile of General Demographic Characteristics: Brooks County, Texas (population 7,976), available at http://www.factfinder.census.gov (last visited May 5, 2005). The Sheriff maintains a separate office and a Chief Deputy for operation of his duties as Tax Assessor-Collector. See Request Letter, supra note 1, at 1. Recently, upon the indictment on a felony charge of a deputy[3] (paid wholly from county funds) in the Tax Assessor-Collector's office, the Sheriff suspended the deputy "with pay until further notice." Id. You tell us that the Sheriff has indicated that though he has no department personnel policies or rules for paid suspensions he considers this action to be within his discretion. See id. The Commissioners Court of Brooks County is concerned that the suspension with pay might continue for an indefinite period. See id. Members of the Commissioners Court have expressed concern that this action is similar to a paid vacation such that it is an allowance within the purview of the Commissioners Court. See id. You recognize that the Sheriff, as an elected official, has great discretion over personnel matters of his office. See id. at 2. Your question requires a determination of whether suspension with pay is a matter within the province of the Commissioners Court or a discretionary matter for the Sheriff.

In your letter you refer to the Sheriff. Id. at 1. However, you indicate that he is acting in his Tax Assessor-Collector capacity. Id. For purposes of this opinion, we use the term sheriff to refer to a sheriff acting in his capacity as tax assessor-collector. See Tex. Att'y Gen. Op. No. V-343 (1947) at 4 ("In counties of less than 10,000 population, the positions of sheriff and assessor and collector of taxes are considered as one office.").

The commissioners court conducts the business of the county. See Tex. Att'y Gen. Op. No. JC-0214 (2000) at 2. In addition to its authority to set the compensation for county employees, see TEX. LOC. GOV'T CODE ANN. § 152.011 (Vernon 1999), the commissioners court is charged with the legislative power of budget making, which involves the discretionary authority of setting the budgetary priorities and allocating county funds to the county's purposes. See Tex. Att'y Gen. Op. No. JC-0214 (2000) at 2-3; see also Randall County Comm'rs Court v. Sherrod, 854 S.W.2d 914, 921 (Tex. App.-Amarillo 1993, no writ) (Poff, J., concurring and dissenting). Though it may not micro-manage an official's decisions as to the use of allocated resources, the commissioners court initially determines "what resources it will place at his disposal." Tex. Att'y Gen. Op. No. JC-0214 (2000) at 3. Only through this budget power is the commissioners court able to influence the actions of other elected officials. Id.

A county sheriff is an elected county officer and thereby has a substantial "sphere of influence" within which another officer may not interfere and which may not be usurped. See Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961) ("Each of the various elected officials, including the Assessor-Collector, has the sphere that is delegated to him by law and within which the Commissioners Court may not interfere or usurp."); see also Renken v. Harris County, 808 S.W.2d 222, 226 (Tex. App.-Houston [14th Dist.] 1991, no writ); Tex. Att'y Gen. Op. No. GA-0037 (2003) at 3. This "sphere of authority" consists of those duties the Texas Constitution and statutes delegate to the sheriff, see Tex. Att'y Gen. Op. No. GA-0037 (2003) at 3, and includes personnel matters.[4] See Comm'rs Court of Shelby County v. Ross, 809 S.W.2d 754, 756 (Tex. App.-Tyler 1991, no writ) (stating Texas courts grant "Texas sheriffs virtually unbridled authority in choosing their personnel"). Although a county commissioners court sets a county officer's budget, the officer may determine how best to use the funds to accomplish the officer's constitutional and statutory duties. See Tex. Att'y Gen. Op. No. JC-0214 (2000) at 3. Texas county officials hold "virtually absolute sway over the particular tasks or areas of responsibility entrusted to [them] by state statute." Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980). Ultimately,

[i]t is for an elected county official to decide how to use the employees who work in his or her office to accomplish the officer's constitutional and statutory duties. Further, it is for the officer to determine what activities constitute a legitimate use of an employee's official time. . . . A commissioners court that adopts a policy to keep employees from following their supervising county official's instructions to leave may unlawfully interfere in the official's sphere of authority.

Tex. Att'y Gen. Op. No. JC-0239 (2000) at 4.

You specifically ask about the commissioners court's authority under section 152.011 of the Local Government Code. See Request Letter, supra note 1, at 1. Section 152.011 provides the commissioners court with authority to "set the amount of the compensation . . . and all other allowances for county . . . employees who are paid wholly from county funds." TEX. LOC. GOV'T CODE ANN. § 152.011 (Vernon 1999). We recognize that the term "compensation" is a broad term that encompasses more than salary. See Tex. Att'y Gen. Op. No. MW-136 (1980) at 2. Additionally, we have previously concluded that authorization to set compensation for employees includes the authority to provide benefits. See Tex. Att'y Gen. Op. No. JC-0131 (1999) at 1 (authority granted under section 152.011 encompasses "the authority to confer employment benefits upon county officers and employees"); see also Tex. Att'y Gen. Op. Nos. MW-438 (1982) at 1 (entitlement to holidays), MW-136 (1980) at 2 (vacation entitlement), H-860 (1976) at 2 (sick leave benefits), H-797 (1976) at 2 (vacation benefits, holidays, and unused vacation time), M-1252 (1972) at 3 (unused vacation time). However, section 152.011 does not authorize the commissioners court to intrude on the sphere of authority of elected county officials to run their offices at their discretion. See Tex. Att'y Gen. Op. Nos. GA-0303 (2005) at 2 (county officer may close office to observe official day of mourning), JC-0239 (2000) at 3 (county officer has implied authority to set the working conditions for employees), JC-0131 (1999) at 1 (commissioners court lacks authority to set office hours of county officials), C-350 (1964) at 1-2 (county officer may close office on Saturday without approval of commissioners court). The commissioners court may not interfere with the powers or duties of independent county officials and their employees. See Pritchard & Abbott, 350 S.W.2d at 335.

Moreover, here we are addressing a literal salary rather than an employee benefit as that term is traditionally used. Section 152.011 authorizes the commissioners court merely to "set" the compensation of county employees. See TEX. LOC. GOV'T CODE ANN. § 152.011 (Vernon 1999). The commissioners court "sets" the salary when it adopts the county budget. Once the commissioners court provides the county officer with the resource of the salary, it may not interfere with his use of that resource for that budget year.[6] See Tex. Att'y Gen. Op. No. JC-0131 (1999) at 3 ("once the salaries of county officers and employees are set, the salaries may not be reduced, outside of the regular budget adoption and amendment process"); see also Pritchard & Abbott, 350 S.W.2d at 335. Here, to preclude the Sheriff from paying the suspended employee during the fiscal year is to effectively fire the deputy. The right to discharge or suspend a county employee is not "implicit in the authority of the commissioners court to create the positions . . . and to provide for their salaries and expenses." Ross, 809 S.W.2d at 756. Accordingly, it is our opinion that as a county officer the Sheriff has the discretion to suspend his deputies and employees as well as the discretion to continue to compensate them during their suspension.

Though broad, this discretion is not unfettered. A sheriff, as every county officer, is bound by the constitution. Article III, section 52(a) provides, in relevant part, that the "Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to . . . grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever." TEX. CONST. art. III, § 52(a). Whether a paid suspension "serves a public purpose must be determined in the first instance by the public official, whose decision is subject to judicial review." Tex. Att'y Gen. Op. No. GA-0303 (2005) at 2; see also Tex. Att'y Gen. Op. No. JC-0119 (1999) at 4. Thus, in order to comport with article III, section 52(a), a sheriff must determine, subject to judicial review, whether a paid suspension primarily serves a legitimate public purpose[7] and must place sufficient controls on the compensation to ensure that the public purpose is carried out.[8] See Tex. Att'y Gen. Op. No. GA-0078 (2003) at 4 (expenditure of public funds is proper under section 52(a) if expenditure serves a public purpose and sufficient controls are in place to ensure the public purpose is carried out); see also Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 383 (Tex. 2002).

Article III, section 53 (hereinafter "section 53") prohibits the granting of extra compensation after service has been rendered. See TEX. CONST. art. III, § 53. Its purpose is to protect local governments by preventing "counties or municipalities from freely giving away the public moneys for services previously rendered or for which no valid legal authorization existed for which the public would receive no return." Tex. Att'y Gen. Op. No. JC-0376 (2001) at 2. In light of its purpose, "[t]he constitutional prohibition forbids paying extra compensation for past performance or adding additional consideration to the contract already entered into." City of Orange v. Chance, 325 S.W.2d 838, 840 (Tex. Civ. App.-Beaumont 1959, no writ). "Extra compensation" has been construed to mean any sum in addition to the contract price or salary. See Dallas County v. Lively, 167 S.W. 219, 220 (Tex. 1914). In Dallas County v. Lively, the Texas Supreme Court said "[e]xtra compensation is such not merely for being greater or less than the contract, but properly because it is outside the contract." Lively, 167 S.W. at 220 (emphasis added). Section 53 does not prohibit payment to employees pursuant to prospective terms of employment. See Chance, 325 S.W.2d at 840 (deciding that Civil Service Act provided for payment of accumulated sick leave and "became and formed a part of their contracts of employment" and was not extra compensation); see also Ward v. City of San Antonio, 560 S.W.2d 163, 166 (Tex. Civ. App.-San Antonio 1977, writ ref'd n.r.e.) ("The contract between the City of San Antonio and the firemen prior to September 1, 1975 was for the payment of 90 days of accumulated sick leave upon the separation from the classified service and the payment of more than 90 days accumulated sick leave accumulated prior to September 1, 1975 would be extra compensation within the meaning and provision of [section 53] . . . ."). Pursuant to the concept of extra compensation being that which is outside of the contract, this office has consistently opined that section 53 does not prohibit the payment of compensation or benefits to employees under prospective terms of employment. See Tex. Att'y Gen. Op. No. JC-0115 (1999) at 2 (award of back pay does not violate section 53 when there has been a policy permitting the practice in place prior to the award of back pay); see also Tex. Att'y Gen. Op. Nos. DM-129 (1992) at 2, 4 (sick leave pool as term of employment with the city did not violate constitution), JM-1253 (1990) at 2-3 ("A bonus may be paid to a county employee only if the commissioners court has approved the bonus plan as part of compensation before the services are rendered."), JM-1160 (1990) at 1-2 (prospective grant of additional sick leave does not violate article III, section 53), H-402 (1974) at 2 (concluding that a commissioners court was not authorized to grant back pay to a suspended employee who had been exonerated unless there had existed, prior to the award of back pay, a policy permitting the practice).

Based on judicial precedent and our previous opinions, we believe that absent a preexisting policy, payment of salary to an employee while that employee is suspended is generally outside the terms of employment of the employee. Salary and other benefits are paid to the employee in exchange for that employee working for the employer for a pre-ordained and specified period of time, i.e., specified numbers of hours per week, for a certain number of weeks a year. An employee who receives the same salary (and benefits) for a period of time less than that originally contemplated receives compensation that is outside of the bargained-for terms of employment, or extra compensation. Accordingly, it is our opinion that where there is no preexisting policy of suspension with pay in the nature of a term of employment, expenditures for that purpose are gratuitous extra compensation prohibited by section 53. See Lively, 167 S.W. at 220; see also Tex. Att'y Gen. LO-98-099, at 1-2; Tex. Att'y Gen. Op. No. H-402 (1974) at 2.

You inform us that the Sheriff has not previously adopted a policy providing for paid suspensions. See Request Letter, supra note 1, at 1; see also Tex. Att'y Gen. Op. No. JC-0115 (1999) at 2 (noting dispute between employees and school district over whether policy existed in school district). The opinion process does not determine facts. See Tex. Att'y Gen. Op. No. GA-0003 (2002) at 1. If the facts show that the Sheriff has no existing policy providing for paid suspensions, then the compensation paid to the deputy during the suspension would be extra compensation and thus prohibited by the constitution. In addition, you do not inform us whether the compensation has been paid to the suspended deputy. See Request Letter, supra note 1, at 1-3. If extra compensation has been paid to the deputy in violation of article III, section 53, the County "may exercise reasonable discretion as to whether to seek reimbursement in a particular case, considering factors such as the 'amount of funds to be reimbursed, the ease of collection, and the legal and other costs incident to collection,'" but is under no duty to recover the extra compensation. Tex. Att'y Gen. Op. No. GA-0171 (2004) at 5; see also Tex. Att'y Gen. Op. Nos. JC-0383 (2001) at 4, MW-93 (1979) at 3.

SUMMARY

Pursuant to section 152.011 of the Local Government Code, the county commissioners court sets the salary of county employees when it adopts the county budget. Having provided county officers with the resource of the established salary, the commissioners court is precluded from interfering with the county officer's use of that resource. Because of their significant "sphere of authority," county officers have the discretion to suspend their deputies and employees as well as the discretion to continue to compensate the deputies or employees they suspend.

A county official's discretion is bounded by the Texas Constitution. As a result, the county official must determine that a public purpose is served by the paid suspension and place sufficient controls on the compensation to ensure the public purpose is carried out to comply with article III, section 52 of the Texas Constitution.

Where there is no preexisting policy constituting a term of employment that provides for suspension with pay to county employees, paid suspension is gratuitous extra compensation prohibited by article III, section 53 of the Texas Constitution. Therefore, a county official does not have the authority to suspend an employee with pay unless the officer has previously adopted a policy allowing for paid suspension.

BARRY R. McBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable David T. Garcia, Brooks County Attorney, to Honorable Greg Abbott, Texas Attorney General (Oct. 26, 2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Letter from Honorable David T. Garcia, Brooks County Attorney, to Honorable Greg Abbott, Texas Attorney General (Nov. 3, 2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us).

[3] Section 85.003 of the Local Government Code provides that "the appointment of a deputy [sheriff] is revoked on indictment of the deputy for a felony." TEX. LOC. GOV'T CODE ANN. § 85.003(c) (Vernon 1999). Because a tax assessor-collector deputy is involved in this instance and not a deputy sheriff, section 85.003 does not apply.

[4] In a prior opinion, this office determined that a sheriff's authority over the hiring of personnel is limited by the civil service system. See Tex. Att'y Gen. Op. No. GA-0254 (2004) at 4 (opining that a "civil service commission's express statutory authority under section 158.035(a)(1) [of the Local Government Code] to regulate employee selection is broad enough to encompass authority to effectively limit the sheriff's hiring authority."). Only counties with a population of 200,000 or more are eligible to create a county civil service system, and only counties with a population of 500,000 or more are eligible to create a sheriff's department civil service system. See TEX. LOC. GOV'T CODE ANN. §§ 158.002, .032 (Vernon 1999). Because the population of Brooks County is less than 10,000, see supra at 1, the civil service statutes are not an issue here.

[5] As deputies of a county officer, deputies of the sheriff are county employees paid by county funds. See TEX. LOC. GOV'T CODE ANN. § 151.001(a) (Vernon 1999) (a county officer requiring the services of deputies, assistants, or clerks in the performance of his duties shall apply to the commissioners court for authority to appoint the employees).

[6] However, a county officer is always accountable to the voters for his conduct. See Familias Unidas, 619 F.2d at 404. Moreover, in each year's budget process, the commissioners court must determine the appropriate funding of a county officer's office. See supra note 5; see also Renfro v. Shropshire, 566 S.W.2d 688, 691 (Tex. Civ. App.-Eastland 1978, writ ref'd n.r.e.). The commissioners court is able to influence the actions of other elected officials through its budget power. See Tex. Att'y Gen. Op. No. JC-0214 (2000) at 3.

[7] The Kentucky Attorney General, in discussing the public purpose served by paid suspensions, stated that there is a relatively direct benefit to the public where a governmental agency, through a suspension with pay procedure, has a mechanism to aid in promptly addressing circumstances where questions have been raised about the actions of governmental employees, while at the same time, the morale of the public employees is protected against the damage that might result from the possibility of their penalization without a determination of culpability. Ky. Op. Att'y Gen. OAG 96-3 (1996) at 2-3.

[8] The Kentucky Attorney General Opinion advises that a suspension with pay policy should contain the following minimum provisions: (1) that such suspension will be levied only under circumstances where there is a justifiable need for it; (2) that it will be imposed for a period not to exceed a reasonable time necessary to determine whether the employee should be returned to active service or that the employee's pay may be lawfully terminated; (3) the policy is uniformly applied; (4) an employee so suspended shall remain available to immediate recall to active service; and (5) there is proper administrative approval and documentation of action taken. Id.